N10405
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 118 OF 2019

THE STATE

V

PAUL PARAKA

Waigani: Berrigan J
2023: 17th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Application for trial judge to recuse following verdict for apprehension of bias – Slip rule application for trial judge to set aside verdict before sentence – Application to refer questions of law to the Supreme Court pursuant to s 21, Supreme Court Act – Applications dismissed.    

Cases Cited:

The State v Paul Paraka, Decision on Verdict (2023) N10273
Wartoto v State (2015) SC1411
The State v Paul Paraka (Decision on Presentation of Indictment) (2020) N8229
The State v Paul Paraka (Decision on Further Amended Motion (No 1) (2020) N8608
The State v Paul Paraka (Decision on Further Amended Motion (No 2) (2021) N8807
The State v Paul Paraka (Decision on apprehension of bias) (2020) N8508
The State v Paul Paraka (Decision on Admission of Bank Records) (2022) N9568  
Boateng v The State [1990] PNGLR 342
PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592
Yama v Bank South Pacific (2008) SC921
Gobe Hongu Ltd v. National Executive Council & Ors [1999] N1964
Yama v. Bank South Pacific Ltd (2008) SC921
Kaseng v Debege [2004] 2 PNGLR 129 
The State v Tanedo [1975] PNGLR 395
The State v Tanedo [1975] PNGLR 395
The State v John Mogo Wonom of Jigi [1975] PNGLR 311
The State v Kaputin [1979] PNGLR 532  
The State v Sunu & Ors, Reservations of Points of Law under s 21 Supreme Court Act [1983] PNGLR 396
The State v Roka Pep, Re Reservations of Points of Law under s 21 Supreme Court Act [1983] PNGLR 287
The State v Ngasele (2003) SC731
Review Pursuant to Constitution S 155(2)(b); Application by Herman Joseph Leahy (2006) SC855
The State v Jack Gola and Mopana Aure [1990] PNGLR 206
The State v Jason Dongoma (2000) N2038
The State v Michael Nama and Others (1999) N1884 
The State v John Koma (2002) N2176
Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112
Investment Promotion Authority v Palpal Seoul Pty Ltd, Kook Myung Hee and Duk Young Kim, SCRA No 13 of 1997, unreported
Wilson Kamit v Michael Dowse Collins, MP No 46 of 2002, unreported
BPNG v Eddie Orubu Mai, OS No 224 of 2004, unreported.

References Cited

Sections 11, 37(11), 44, 49 and 57 of the Constitution
Sections 383A(1)(a)(2)(d) of the Criminal Code (Ch. 262) (Criminal Code)
Section 21 of the Supreme Court Act
Section 5 of the Audit Act
Order 8 Rule 59(1), National Court Rules 

Counsel

Ms H. Roalakona and Ms S. Mosoro, for the State 
Mr P. Paraka, for himself  

DECISION ON MOTION

17th July, 2023

1.	BERRIGAN J: The offender was convicted of five counts of misappropriating property belonging to the State between 2007 and 2011, contrary to s 383A(1)(a)(2)(d) of the Criminal Code (Ch. 262) (Criminal Code): The State v Paul Paraka, Decision on Verdict (2023) N10273.

2.	The offender today moves a motion seeking to have the verdict set aside, declared a mistrial, vacated, or permanently stayed, and seeks that he be acquitted, or alternatively, that I recuse myself from dealing with the matter further.  

3.	In addition, the offender seeks to have several questions referred to the Supreme Court for consideration, and further, that the proceedings be stayed whilst those questions are considered.  

4.	The (amended) motion is in five parts.  A further application was made without leave for the Court to set aside the verdict on the basis of a slip.  The headings below are taken from the offender’s motion as filed and are addressed accordingly.   

Biased Decision: Set-aside or permanent stay of verdict
5.	The offender applies for the verdict to be set aside or permanently stayed on the basis that my decision was biased for being made in misapprehension of the evidence and/or without any evidence, in reliance on prosecution submissions, and reliance on inadmissible bank records.

6.	As the Supreme Court made clear in Wartoto v State (2015) SC1411 it is an abuse of process for a person to bring an application or proceeding to challenge charges against them outside the procedures available at the relevant and appropriate stage of the criminal process: [60], [72], [74], [117]. 

7.	The circumstances in which judgement might be arrested following verdict are very limited and are not applicable here.  

8.	Furthermore, the matters complained of under this part of the motion are not matters giving rise to apprehension of bias but alleged errors of law and/or fact or challenges to the safeness of the conviction. The appropriate stage for those matters to be taken up following verdict is on appeal.  

9.	I will deal with further allegations of bias below. 

10.	The first part of the application is dismissed for being an abuse of process.

Proof Beyond Reasonable Doubt

11.	The second part of the motion seeks to have the verdict set aside, a mistrial declared, and the indictment permanently stayed on the basis that I convicted the offender despite expressing doubt.  

12.	My decision on verdict speaks for itself. It is not appropriate for me to debate it with the offender.  The safeness of the conviction is a matter that may properly be raised on appeal.  

13.	The application is dismissed for being an abuse of process.

Lack of Jurisdiction

14.	The third part of the motion seeks to have the conviction set aside, the trial declared a mistrial and the indictment permanently stayed on the basis that this Court lacks jurisdiction because the charges concern the alleged payment of legal bills/court judgments and the State’s obligation to pay legal bills and court judgments, which are matters to be determined by a court of civil jurisdiction pursuant to s 37(11) of the Constitution. 

15.	The offender was indicted in the National Court on five counts of misappropriation contrary to s 383A(1)(a)(2)(d) of the Criminal Code.  

16.	The National Court sitting in its criminal jurisdiction has power to hear and determine the said charges.

17.	The submission is rejected and the application refused.

Disqualification/Recuse

18.	The fourth part of the motion contends that I should recuse myself from the trial and from further proceeding in the case because I found against the offender on various applications, including his objection to the presentation of the indictment, The State v Paul Paraka (Decision on Presentation of Indictment) (2020) N8229; his applications to quash, set aside and permanently stay the indictment, The State v Paul Paraka (Decision on Further Amended Motion (No 1) (2020) N8608 and The State v Paul Paraka (Decision on Further Amended Motion (No 2) (2021) N8807; his application for me to recuse myself, The State v Paul Paraka (Decision on apprehension of bias) (2020) N8508, and his objection to the bank records: The State v Paul Paraka (Decision on Admission of Bank Records) (2022) N9568.  

19.	The principles governing apprehension of bias are well settled. The fact that I found against the offender on his applications does not establish an apprehension of bias.  A fair minded lay observer, in possession of all relevant facts, and having some knowledge of the way in which lawyers and judges work would well appreciate that fact:  Boateng v The State [1990] PNGLR 342; PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592; Yama v Bank South Pacific (2008) SC921; Gobe Hongu Ltd v. National Executive Council & Ors [1999] N1964; Yama v. Bank South Pacific Ltd (2008) SC921; The State v Paraka (2020) N8508. 

20.	The reasons for the decisions on those applications are set out in my rulings.  The offender is entitled to maintain that I erred in these rulings but the appropriate place for him to pursue those contentions at this stage of the proceedings is on appeal.

21.	The offender further contends that I made derogatory and biased remarks against him, including that the indictment concerned an “exceptionally large amount of monies” and that the case concerned (emphasis mine): 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 a hard to imagine a more serious allegation of misappropriation involving a lawyer” in The State v Paul Paraka (2021) N8807. 

22.	The statements about the serious nature of the allegations speak for themselves, as do statements that: “Whether or not the State is able to establish those allegations to the requisite standard is a matter to be determined at trial:  [193] and [197].

23.	Ultimately, it is neither necessary nor appropriate for me to debate any allegations of bias with the offender at this stage of the proceedings.  The proper place for such arguments is on appeal: Wartoto applied.

24.	The application is accordingly refused for being an abuse of process.

Slip Rule Application

25.	The offender submits that I slipped in finding the elements of the offence established beyond reasonable doubt and that I should therefore correct my error and acquit him.

26.	The authorities relied upon by the offender for the most part those which apply at the Supreme Court stage, where very different considerations apply.  The authorities do not apply here at the National Court stage.  

27.	At the National Court level, Order 8 Rule 59(1), National Court Rules, allows for the correction of a clerical mistake in a minute of a judgment or order. The order does not allow the National Court sitting in its criminal jurisdiction to revisit its verdict.  I do not read the decision of Kaseng v Debege [2004] 2 PNGLR 129 relied upon by the offender to suggest otherwise.    

28.	The application for the verdict to be quashed as a slip is refused for being an abuse of process.

Reservation on Points of Law to the Supreme Court

29.	The offender seeks an order that the following questions be referred to the Supreme Court for consideration pursuant to s 21(1) of the Supreme Court Act (amended on submission and additional question posed):

(a)	Does a trial Judge have the power to analyse and make findings based on bank transactions of 7 Law Firms and PKP Nominees Ltd after the close of the trial, without any competent Bank Officers witnesses providing direct evidence at trial on the money trail?
(b)	Can the trial judge lawfully rely on the Bank Transactions, without evidence of the 	payment vouchers and cheques, and without natural justice accorded to the accused and make determination of the criminal charges?
(c)	Does the trial Court have the power to admit Bank documents including Bank Statements into evidence in the exercise of its discretion under Common Law and s. 57(3) of the Constitution, where the Search Warrants and Bank documents obtained have been declared unlawful and in breach of s. 6 of the Search Act and ss. 11, 44 and 49 of the Constitution?
(d)	Since the allegation involved alleged legal bills/Court Order payments allegedly paid to the Law Firms and allegedly transferred to accused Law Firm and PKP Nominees Ltd does it involve determination of the Law Firms’ civil rights and the State’s obligations to pay, and whether these are matters squarely in the Civil Jurisdiction of the Civil Courts and  Administrative Tribunals under s. 37 (11) of the Constitution and whether the Criminal Courts lack jurisdiction?
(e)	Whether the Criminal Court can inquire into the allegation of misappropriation under s.383 A of the Criminal Code Act without a referral by the Auditor General under s 5 of the Audit Act?
(f)	Insofar as the allegations involved alleged breach of National Court and Supreme Court Stay Orders, are they matters in the contempt jurisdiction of the National and Supreme Courts under s 37(2), 160(2) and 163(2) of the Constitution and is the Criminal Code devoid of jurisdiction?

30.	Section 21 of the Supreme Court Act provides (emphasis mine):

RESERVATION OF POINTS OF LAW.

(1) When any person is indicted, the National Court shall, on the application of counsel for the accused person made before verdict, and may in its discretion, before or after verdict without such application, reserve any question of law that arises on the trial for the consideration of the Supreme Court.

(2) If the accused person is convicted, and a question of law has been reserved under Subsection (1) before judgement, the National Court may–
(a) pronounce judgement on the conviction and respite execution of the judgement; or
(b) postpone the judgement until the question has been considered and decided,
and may–
(c) commit the person convicted to prison; or
(d) admit him to bail on recognizance, with or without sureties, and in such sum as the Court thinks proper, conditioned to appear at such time and place as the Judge directs, and to render himself in execution, or to receive judgement, as the case may be.

(3) The National Court shall state, in the case signed by the Judge or Judges exercising the jurisdiction of the Court, the question of law reserved under Subsection (1), with the special circumstances on which it arose, and the case shall be transmitted to the Supreme Court.

(4) Any question reserved under Subsection (1) shall be heard and determined by the Supreme Court.

(5) Any question reserved under Subsection (1) shall be heard and determined after argument by and on behalf of the prosecution, and of the accused or convicted person or persons, if they desire that the question shall be argued, and the Supreme Court may–
(a) affirm the judgement given at the trial; or
(b) set aside the verdict and judgement and order a verdict of not guilty or other appropriate verdict to be entered; or
(c) arrest the judgement; or
(d) amend the judgement; or
(e) order a new trial; or
(f) make such other order as justice requires,
or the Court may send the case back to be amended or restated.

31.	The parties have not referred to any cases in support of their submissions.  That is perhaps understandable. There are few cases considering s 21 of the Supreme Court Act, reflecting the fact that it is rarely invoked.  

32.	The offender submits that the questions raise questions of natural justice, impartiality, and objectivity.    

33.	The State submits that the application should be dismissed in its entirely for being an abuse of process. It is an attempt to delay the proceedings. The issues raised by the questions have been argued, deliberated upon and determined, or otherwise concern evidence and procedure. The matters raised should be raised on appeal. 

Principles
34.	It is apparent on the face of s 21(1), Supreme Court Act that the question reserved must be one of law, not of practice, procedure or sufficiency of evidence.    

35.	It must also be one that arises on the trial.  

36.	In The State v Tanedo [1975] PNGLR 395, the Court held that where a question of law has been reserved for consideration by the Supreme Court before verdict an adjournment of the trial pending decision of the reference is not required by law. It is inexpedient to do so. 

37.	Prentice DCJ further expressed the view in that case that a question reserved prior to verdict may only be transmitted to the Supreme Court where the accused is convicted. In my view that is the effect of s 21(1), (2) and (3) when read together. See also the discussion in Carter’s Criminal Law of Queensland, 20th Edition, 2015, at [668B] and the cases referred to at [668B.25], concerning s 668B of the Queensland Criminal Code which is almost identical terms, which whilst not binding, are persuasive: R v Davis (1904) 7 WALR 78; R v Finn (1878) 1 SCR (NSW) (NS) 259; Ex parte Burns (1893) 10 WN (NSW) 70; R v Elliott [1938] St R Qd 311; (1938) 33 QJPR 180.  Ultimately it is not necessary for me to decide that here.

38.	I make reference to it, however, to note the distinction between verdict and judgment, the latter meaning sentence:  The State v Tanedo [1975] PNGLR 395.

39.	The National Court may, in its discretion, refer a question of law for the consideration of the Supreme Court, before or after judgment without a request of defence counsel: s 21(1).  

40.	If a person is convicted, and a question of law has been reserved before judgment, the National Court may postpone judgment on the conviction, ie sentence, pending the hearing of the case to be stated, or pronounce judgment on the conviction and respite execution of the judgment, ie sentence: s 21(2); Tanedo, supra.  The preferred course is to proceed to pronounce sentence and respite execution of it before referring the case to the Supreme Court:  The State v Tanedo [1975] PNGLR 395, The State v John Mogo Wonom of Jigi [1975] PNGLR 311; The State v Kaputin [1979] PNGLR 532.  

41.	Section 21(3) provides that in stating the case the National Court shall state the question of law reserved with the special circumstances on which it arose. In my view, therefore, at least in circumstances where there is a discretion to transmit a question of law to the Supreme Court, the National Court should consider whether it arose in any special circumstances. For instance, where the effect of legislation following amendment is unclear, as in The State v Sunu & Ors, Reservations of Points of Law under s 21 Supreme Court Act [1983] PNGLR 396. In that case four accused pleaded guilty to an offence to which the Criminal Code (Minimum Penalties) Amendment Act 1983 applied, which provided for a minimum imprisonment term of not less than five years. The Chief Justice ruled that he therefore had no discretion and sentenced each offender to imprisonment with hard labour for five years but referred the question as to that matter to the Supreme Court for consideration. Similarly, special circumstances might arise where there is a divergence of authorities as to the position at law, as in The State v Roka Pep, Re Reservations of Points of Law under s 21 Supreme Court Act [1983] PNGLR 287.  

42.	The reason for that is obvious.  The appropriate place for questions of law to be raised is normally on appeal.  It is neither in the interests of justice, nor the efficient administration of it, to refer questions of law to the Supreme Court for determination when they might normally be raised on appeal, and bearing in mind that the substantive rights of a person convicted by the National Court remain protected pending any appeal.

Consideration

43.	With respect to question a), the question is misconceived. 

44.	A trial judge has a duty to review all evidence admitted at trial, whether oral, documentary or physical, when determining the question of guilt.  The table the offender refers to is not evidence, it is a summary of certain evidence in a convenient and transparent form.  

45.	Furthermore, the question posed is not a question of law.  It is in effect a challenge to the safeness of my verdict on the evidence at trial. 

46.	This is not to suggest that the offender is not entitled to challenge my findings on the bank records, together with the other evidence. He is, of course, entitled to do so. But no question of law arises. The appropriate place for the offender to challenge the safeness of the conviction is on appeal.  

47.	As to question b), it is not a question of law arising on the trial. It is instead a challenge to the safeness of the conviction on the face of the evidence admitted into trial. That is a matter that might be raised on an appeal in the normal manner. 

48.	On its face question c) raises no question of law.  On its face the question recognises that the Court has a discretion at both the common law and pursuant to s 57(3) of the Constitution. The question therefore is not one of law requiring consideration. It is rather a contention that I erred in the exercise of those discretions. Those are matters that might properly be taken up on appeal in the normal manner. 

49.	To the extent that the offender is contending that there is no discretion under s 57(3) of the Constitution the offender has failed to satisfy me, however, that the question arises.  I don’t agree that there is a question of law to be determined as to the meaning of s 57(3).  This issue has been fully argued, heard and determined before: The State v Paul Paraka (Decision on Admission of Bank Records) (2022) N9568. The contention is not supported by the terms of s 57(3) itself, and there is established case law to the contrary regarding the operation of s 57(3) generally, some of which is set out in my decision.  

50.	Assuming I am wrong about that, the offender has failed to persuade me that I should exercise my discretion to refer the question to the Supreme Court. There are no special circumstances warranting referral. It is a matter that the offender may properly raise on appeal. His substantive rights remain protected in the meantime.  

51.	With respect to d), there is no question of law arising with respect to s 37(11) of the Constitution. I repeat my comments above. 

52.	The question posed under e) is misconceived.  It does not arise on the face of s 5 of the Audit Act. It is an issue that has been argued and determined during the course of these proceedings: 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].  

53.	Moreover, the primacy of the Public Prosecutor’s power to control the prosecution function of the State under the Constitution has been affirmed many times in the jurisprudence: The State v Ngasele (2003) SC731; Review Pursuant to Constitution S 155(2)(b); Application by Herman Joseph Leahy (2006) SC855 at [149]; The State v Jack Gola and Mopana Aure [1990] PNGLR 206; The State v Jason Dongoma (2000) N2038; The State v Michael Nama and Others (1999) N1884; The State v John Koma (2002) N2176; The State v Paul Paraka (Decision on Presentation of Indictment) (2020) N8229 at [79]; Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112 and the authorities discussed therein; see [73], [117]; Investment Promotion Authority v Palpal Seoul Pty Ltd, Kook Myung Hee and Duk Young Kim, SCRA No 13 of 1997, unreported; Wilson Kamit v Michael Dowse Collins, MP No 46 of 2002, unreported; BPNG v Eddie Orubu Mai, OS No 224 of 2004, unreported.

54.	Given the weight of the authority I do not see how it can be said that a question of law arises.  To the extent that I am wrong about that, the offender has failed to persuade me that there are any special circumstances warranting referral of it to the Supreme Court. The issue is one that might be raised in the normal manner on appeal. 

55.	The question under f) is misconceived and does not arise. 

56.	Section 37(2) of the Constitution provides that “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”.  

57.	This Court did not sit and determine any questions of contempt.  It heard and determined charges of misappropriation, contrary to s 383A of the Criminal Code, offences which are known to the written law.  

58.	The contention has been heard and determined previously: State v Paraka (Decision of Further Amended Motion No 1) at [99] to [102]; The State v Paul Paraka (Decision on Further Amended Motion (No 2) (2021) N8807.  There is no question of law arising.

Conclusion 

59.	Accordingly, the amended motion filed 26 June 2023 is dismissed in its entirety. 

___________________________________________________________
Public Prosecutor: Lawyers for the State
Paul Paraka in person