SC2478

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP 4 OF 2023

BETWEEN
PAUL PARAKA
Appellant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani:   Purdon-Sully J
2023: 18th October

SUPREME COURT – Bail Application – Appeal after conviction – Exercise of discretion - Exceptional circumstances – Prospects of success on appeal – Medical condition – Preparation for appeal - Other grounds including family welfare considered – Bail refused

SUPREME COURT – Application for enforcement of constitutional rights – Constitution, s.37 (protection of the law) – Constitution, s.57 (enforcement of guaranteed rights and freedoms) – whether applicant should be released into care of his doctor and be permitted to attend legal office to prepare for appeal – Deficiency of evidence that constitutional rights breached by imprisonment – Application refused

Cases Cited:

Papua New Guinea Cases
Ati Wobiri & Ors v The State SCAPP 18,19 & 20 of 2016, Unreported Judgment dated 24 November 2016
Charlie v The State [2004] PGSC 19
David Kaya v The Independent State of PNG [2019] PGSC 119
Denden Tom & 2 Ors v The State (2007) SC914
Ere v State [2018] PGSC 109; SC1875
Jaminan v The State [1983] PNGLR 122
Kavo v The State [2014] PGSC 76; SC1571
Mataio v The State [2007] PGSC 22; SC865
Nombri v Kadai [2014] PGSC 75
Paraka v The Independent State of Papua New Guinea SCAPP No 4 of 2023, Unreported Judgment dated 6 October 2023
Schubert v State [1978] PNGLR 394
The State v Tiensten (2014) N5563
Smedley v The State [1978] PNGLR 452
Tracey Tiran v The State (2019) SC1844
Yasause v The State (2011) SC1112

Overseas Cases
Chamberlain v R (No 1) [1983] HCA 13; (1983) 153 CLR 514

Legislation
Bail Act 1977 ss.11
Bail Rules 2021 
Correctional Services Act 1995 ss.7, 13, 67, 72, 75, 96, 100, 122, 123, 124, 126, 141
Supreme Court Act 1975 ss.5 (i)(e), 22 
The Constitution of Papua New Guinea ss.37(1)(3), (11), (15), (16), 42(6), 57(1), (3)

Counsel
P Paraka, the Applicant in person
H Roalakona, for the Respondent

These reasons were delivered ex tempore on 19 October 2023 and have been corrected for literal and grammatical errors.

19th October 2023

1.	PURDON-SULLY J: INTRODUCTION: This is an application for bail by Mr Paul Paraka pending appeal. The application is opposed by the State. 

2.	If Mr Paraka’s application is unsuccessful, he seeks the orders detailed in his Amended Application filed on 16 October 2023 as follows:
1.	FOR AN ORDER pursuant to ss. 96, 100 and 141 of Correctional Services Act, s.5(1)(a) and (b) of the Supreme Court Act, and ss. 37 (1) and (3) and 57(3) of the Constitution. 
(a) 	The CIS Commissioner and Bomana Commander transfer the prisoner forthwith to the care and custody of Doctor Boko of the Port Moresby General Hospital (Cartiology Laboratory Clinic) medical facility forthwith pursuant to the medical reports dated 7 September 2022 and 27 September 2022 respectively until the prisoner’s full recovery and upon recommendations from the Doctors and the conclusion of the Supreme Court cases whichever occurs earlier. 
(b)	The CIS Commissioner and Bomana Commander give all necessary and practical help for the prisoner to have access to his office and facilities to prepare for his cases in the Supreme Court in the following proceedings:
(i) 	SCAR No. 20 of 2023; Paul Paraka v The State -Substantive Appeal, 
(ii) 	SCAR No. 20 of 2023; Paul Paraka v The State, Appeal on State (sic), 
(iii) 	SCAPP No. 4 of 2023; Paul Paraka v The State - Bail Application.
2.	Affidavits in support of this application is sworn by Paul Paraka on 11, 12 and 16 October 2023.

RELEVANT BACKGROUND

3.	The relevant background to this application is as follows.

4.	On 26 May 2023 Mr Paraka was found guilty and convicted by the National Court of five (5) counts of misappropriation. 

5.	On 4 July 2023 he filed a Notice of Appeal against that conviction.  The grounds of the appeal are detailed but essentially assert errors of law and fact on the part of the trial judge and a denial of natural justice and fair trial. He informed the Court yesterday he intends to amend his appeal to also include an appeal against sentence.

6.	On 16 August 2023 Mr Paraka’s application for a stay of the verdict of the National Court in his criminal proceedings pending the hearing of his substantive appeal against conviction and prior to his sentencing was refused by a Judge of this Court. 

7.	On 28 August 2023 Mr Paraka sought the same relief, namely a stay of the verdict of the National Court, in separate proceedings involving the enforcement of his constitutional rights.  That application was also refused.

8.	He has lodged appeals against both stay decisions. 

9.	On 4 October 2023 Mr Paraka was sentenced to a term of imprisonment of 20 years with hard labour.  He was transported to Bomana Correctional facility where he remains to this day.

10.	On 4 October 2023 he lodged this application for bail. It came before my brother Judge, Justice Dingake, on 6 October 2023.  Mr Paraka, who self-acts, was granted an adjournment to 12 October 2023 to enable him more time to file further documents in support of the bail application. A further application for bail pending the adjourned hearing was refused.  

11.	On 6 October 2023 Mr Paraka wrote to the Commander of the Bomana Correctional facility seeking to be placed in the jail’s infirmary due to his cardiac condition.  It is unchallenged that Mr Paraka suffers from coronary disease and is at a high risk of a heart attack. On the evidence Mr Paraka has found his living conditions in prison challenging and on his case the conditions are not supportive of his health needs.

12.	On 9 October Mr Paraka wrote again to the Commander seeking a leave of absence to see his specialist doctor for regular checkups and also to be allowed to use his office facilities in Boroko to meet with a lawyer.

13.	Both communications to the Commander included copies of various medical reports, including reports from his cardiologist, Dr Boko. One of the reports, dated 11 March 2022 from his General Practitioner, noted that he had, at that time, suffered a mild stroke.

14.	Mr Paraka’s bail application could not proceed on the adjourned date of 12 November 2023 as he had not filed and served his material. He sought further time to do so.  A further date for hearing could not be provided at that time, Justice Dingake indicating that the matter may need to be transferred to another Judge given his court commitments and absence on official court business thereafter.

15.	That afternoon Mr Paraka filed his further documents in support of his bail application and material addressing the exceptional circumstances he asserted grounded his application.  The material was extensive. 

16.	A Chamber Order was issued on the afternoon of 12 October 2023 that the bail application would be heard by me on 18 October at 9.30 am.

17.	On 12 October 2023 Mr Paraka filed two applications largely in the same terms save for one order, seeking orders, some in the alternative, requiring the Commander and medical doctor at Bomana to take certain steps responsive to his health needs and for the Commander to facilitate access to his law office. The orders sought were purported to be brought pursuant to various sections of the Correctional Services Act 1995, Supreme Court Act 1975 and the Constitution.  

18.	The following day, the 13 October 2023, Mr Paraka forwarded a letter to the Court seeking an urgent listing of his application at either 11am or 2pm that day.  

19.	The papers did not establish urgency and a Chamber Order issued that the matter remain listed for 18 October.
20.	On 16 October 2023 Mr Paraka filed his Amended Application as earlier detailed.

21.	On 17 October Mr Paraka filed a further application, again on the basis of urgency, seeking a hearing before the Court that day asserting in written communication with the Registrar that the basis of the urgency was that he had suffered a mini stroke.  

22.	On 17 October a Chamber Order issued refusing the relisting as requested however directing the Registrar to issue a Summons requesting the Commander at Bomana to appear before the Court to give evidence on 18 October with the hearing to commence at 1.30pm instead of 9.30 am as originally allocated.

23.	On 18 October 2023, I heard the application for bail together with the Amended Application in the event bail was not granted.   Chief Superintendent Yenny Oiufa, Commander of the Correctional Service at Bomana, gave evidence. I thank him for his attendance at short notice. I shall refer to his evidence later in these reasons in my discussion of the issues requiring determination.

THE ISSUES

24.	There are two issues: 

a.	Should Mr Paraka be granted bail pending appeal; and  
b.	If not, then should the Court make the orders sought by him in his Amended Application filed on 16 October 2023.

25.	I have considered the material relied upon by the parties which is a matter of record.  I have considered the oral submissions of the parties and the written submissions filed on behalf of the State.  I do not propose to respond to each and every submission made however in reaching a determination on the issues I am required to decide I have considered all submissions.

BAIL APPLICATION 

26.	Mr Paraka brings his bail application pursuant to s.11 of the Bail Act 1977 and s.5(1)(e) of the Supreme Court Act 1975.  I sit as a single judge of the Supreme Court in determining the application.

27.	Section 11 of the Bail Act provides that when a person lodges an appeal against his conviction or sentence or both the court may in its discretion grant bail pending the appeal. 

28.	Section 5(1)(e) of the Supreme Court Act provides that where an appeal is pending before the Supreme Court an order admitting the appellant to bail may be made by a Judge. Subsection 2 of that Act provides that a direction or order so made shall be deemed to be a direction or order of the Supreme Court.

29.	Part V of the Bail Act outlines the procedure to be followed on a grant or refusal of bail including the need for the court hearing the bail application to give reasons for its decision if the application is refused.  

30.	The Bail Rules 2021 provide for the formal requirements for making a bail application, the applicant for bail at liberty to provide affidavits, statements and other documents in support of their application. 

Legal principles

31.	The principles which govern bail after conviction and pending appeal are well settled in this jurisdiction (Smedley v The State [1978] PNGLR 452; Schubert v The State (1978) PNGLR 394; John Jaminan v The State [1983] PNGLR 122; Ere v The State [2018] PGSC 109; Tracey Tiran v The State (2019) SC1844.

32.	The power to grant bail is discretionary. 

33.	There is no right of bail after conviction. A Court must be very vigilant and cautious in its consideration of such applications. This is because having been convicted the presumption of innocence no longer prevails, and the strong presumption in favour of bail pursuant to s. 42(6) of the Constitution is no longer applicable.

34.	Further, respect ought to be given to the decision of the trial judge, the arbiter of whether the accused is convicted or acquitted, to avoid investing the verdict with a “provisional quality, as though it takes effect only after the channels of appeal have been exhausted” (see Chamberlain v R (No 1) [1983] HCA 13 per Brennan J at [8], cited with approval by Mogish J in Charlie v The State [2004] PGSC19). 

35.	The applicant must accordingly show exceptional circumstances or a circumstance of an “extra-ordinary nature” as to why bail should be granted (Nombri v Kadai [2014] PGSC 75 per Injia CJ at [13]).

36.	What amounts to an exceptional circumstance depends on the whole of the circumstances of the particular case.  

37.	The onus of satisfying exceptional circumstances lies with the applicant for bail. 

Grounds  

38.	In his affidavit filed on 12 October 2023, titled Exceptional Circumstances, Mr Paraka advances the following grounds individually and collectively as constituting exceptional circumstances that support a grant of bail:

a.	medical grounds
b.	Supreme Court appeal on foot
c.	preparation of appeal on sentence
d.	legal representation 
e.	shortage of staff
f.	upkeep of children and family
g.	disbarment from practice
h.	chances of success on appeal

39.	In my view these grounds can be conveniently considered under three headings:

a.	Prospects of success on appeal being high - Grounds (h) and (i) 
b.	Preparation for his appeal - Grounds (b), (c), (d), (e), (f) and (g)  
c.	Medical grounds – Ground (a)

40.	Mr Paraka agreed to that approach.

41.	Counsel for the State, Ms Roalakona, submits that the grounds advanced individually or collectively do not amount to an exceptional circumstance such as to permit bail and that Mr Paraka’s application should be dismissed.

42.	I will deal with each ground in turn.

Prospects of success

43.	With respect to his prospects of success it is Mr Paraka’s case that he is a victim of a substantial miscarriage of justice and the chances of him succeeding on appeal with respect to both the appeal against conviction and the stay are high. He has filed extensive material in support of this ground annexed to his various affidavits and the ground was the subject of particular focus in his oral submissions before me yesterday. 

44.	There are a number of authorities in this jurisdiction however which stress the undesirability of Judges forming a view on an appellant’s prospects when considering a bail application.  Those authorities make clear that to do so would usurp the function of the appeal court. 

45.	In Rakatani Mataio v The State (2007) SC865 the Court (Sakora, Sevua, & Lenalia, JJ) after an extensive consideration of the law, relevantly said at [56]-[58]:

56.	We consider it is wrong and undesirable for a Court hearing a bail application after conviction, to be weighing up the prospects of success by considering the grounds of appeal. It is for the appropriate Court to determine the success or failure of an appeal or the grounds. We concur with, and adopt, what Amet CJ said in Bola Reniga & 2 Ors. We are of the opinion that that is the correct approaching law and the correct law to apply in this application band in all similar applications. ….
57.	….It is quite inappropriate and dangerous, in our view, for the Supreme Court to start to determine the issue of the prospect of success of an appeal when the Court is not dealing with the substantive merits of the appeal. It is tantamount to hearing the grounds of appeal and that is not the function of the Court at that stage of the appeal.

58.	For these reasons, we hold that the prospect of success of an appeal is not an exceptional circumstance per se. The circumstances of the whole appeal must be considered, not just the prospect of the success of the appeal…..

46.	Those principles have been reiterated at appellate level and otherwise followed in a number of decisions in this jurisdiction (see for example, Denden Tom & 2 Ors v The State (2007) SC914 Yasause v The State (2011) SC1112; Ere v The State [2018] PGSC;SC1875).

47.	Mr Paraka relies upon the decision of Havila Kavo v The State (2014) PGSC 76; SC1571 (b  Kavo) where bail was granted after a consideration of the applicant’s prospects of success. Counsel for the State submits that the facts of that case are distinguishable from this case.  

48.	In Kavo, the applicant, who had been sentenced to a term of imprisonment for the offence of misappropriation, sought and was granted bail pending appeal.  The applicant relied upon three grounds as constituting exceptional circumstances, including prospects of success on appeal.

49.	With respect to that ground, Injia CJ said this at [7]:

7.	With regard to the second point, it is always difficult for the Court to assess the prospect of success of an appeal from a glance at the judgment on conviction and or sentence or from the grounds of appeal howsoever precise or meticulously pleaded they may be. At the bail stage, it is not for this Court to discuss the merits of the appeal in any detail and reach a conclusive view as to the merits of the appeal. However, the Court can for the purpose of determining the exceptional nature of the appeal, peruse the judgment and Court records and if found to contain errors that may be apparent on the face of the record from which the Court may form a tentative view as to the likely success or failure of the pending appeal. Fraudulent intent on the part of the offender charged and tried for the offence of misappropriation is an essential element of the offence of misappropriation and a particular and clear finding of fact on the evidence is essential to support a conviction. Mr Molloy argues that there appears to be an apparent error on the face of the record of the judgment on verdict, where there is no definitive and conclusive finding of fact that the applicant acted dishonestly or had a fraudulent intent in applying to his own use the sum of K131,338, the property of the State. Mr Kuvi did little in his submissions to rebut Mr Molloy’s arguments. I accept Mr Molloy’s arguments on this point. There is that finding that the trial judge made that the applicant “was entitled to such sum, but took it from the wrong basket” and there are other such similar findings made in favor of the applicant that follow, but these fall short of any definitive finding that such of his actions were in fact dishonest or done with fraudulent intent to defraud the State of its property. I find that the applicant has a good prospect of success on this point.

50.	At [13] of His Honour’s reasons he concluded that the interests of justice in the particular case before him, where the applicant had a high prospect of success in his appeal against conviction, was the dominant consideration in the circumstances of that case which militated in favour of grant of bail.

51.	In David Kaya & the Independent State of Papua New Guinea [2019] PGSC 119, Justice Hartshorn whilst noting the approach taken and comments made by the Chief Justice in Kavo with respect to the consideration to be given by the Court to this factor, nevertheless went on to conclude that it was not for him to form a view on the applicant’s prospects of success on appeal. 
 
52.	It is always necessary to consider the whole of the circumstances of each case. Having heard Mr Paraka’s submissions on the issue of prospects and having otherwise considered the authorities, I am also of the opinion that it would be wrong for me to determine at this juncture or otherwise express a view on his prospects. I am of the view that a determination of the arguments raised by Mr Paraka on appeal are arguments for full consideration of the appeal court proper.

53.	I find that this ground in support of the bail application does not constitute an exceptional circumstance and must accordingly fail.

Medical grounds

54.	With respect to the ground based on Mr Paraka’s health, this may constitute an exceptional circumstance justifying a grant of bail but only if the condition is life threatening and continued detention would seriously endanger the health and life of the prisoner (Ati Wobiri & Ors v The State SCAPP 18, 19 & 20 of 2016 Unreported Judgment dated 24 November 2016, cited with approval in Ere v The State (supra) at [9] ).

55.	Mr Paraka suffers from a serious cardiac condition that requires monitoring and surgical intervention.  On the evidence he is at risk of a heart attack if he does not receive appropriate monitoring and treatment.  He has been treated for coronary disease at the Port Moresby General Hospital since about March 2022.  He is under the care of a cardiologist, Dr Boko. In 2022 he underwent a stent procedure at that hospital which was successful.  Because of a further blockage, he requires the insertion of further stents.  

56.	In his report of 7 September 2023 Dr Boko indicated that they were awaiting the receipt of a Drug Eluding Balloon to enable the stenting procedure to be undertaken.  The balloon was to arrive within 2 to 3 weeks.  In his further report of 27 September 2023 he said they were still waiting for the device to arrive. There is, however, no evidence to suggest it will not arrive or that there is likely to be a significant delay in its arrival.  

57.	Mr Paraka no longer presses his application for permission to travel overseas to have the stenting procedure undertaken. So any urgency prima facie presented on the report of Dr Boko dated 27 September 2023 in that regard, is not a factor the Court is required to now consider.  

58.	The evidence is that the stenting procedure will likely take place at the Port Moresby General Hospital on the receipt of the balloon device and the return of the hospital’s expatriate Consultant (see para 10(c) of Mr Paraka’s affidavit sworn 8 September and filed 12 October).  The procedure is likely to effect an improvement to Mr Paraka’s health.  

59.	I am unable to conclude on the evidence before me that Mr Paraka’s continued detention would seriously endanger his health and life or that he is likely to be denied appropriate medical treatment whilst incarcerated such as to amount to an exceptional circumstance to support bail.  He will be examined by the resident medical officer at Bomana within 24 hours, the Commander undertaking to the court to arrange for that to take place.  I am satisfied having heard the evidence of the Commander that there are procedures to ensure an appropriate response to Mr Paraka’s health needs, including procedures to respond to any emergent health circumstance either by referral to the medical officer who is onsite 24/7 or transfer to the onsite hospital infirmary or to hospital.  

60.	Mr Paraka’s request to have oversight by Dr Boko is in the process of being considered. 

61.	It is clear that Mr Paraka finds his circumstances, including the condition of his cell as uncomfortable and stressful.  This is not unusual for a person in his situation.  He is not at liberty to make decisions as he may have previously or with the liberties he earlier enjoyed.  The fact that he makes requests or seeks particular arrangements does not mean that they must be acceded to in a way or on a timetable of his choosing. The evidence before me, on balance, does not suggest an undue lack of attention to his requests notwithstanding his desire for more prompt action.  On the evidence of the Commander there are procedures that he must follow. I am satisfied having heard his evidence yesterday he understands the issues and will address them.

62.	In summary, there is no persuasive evidence that Mr Paraka does not have access to a medical officer, to adequate medical facilities whilst incarcerated or that the prison is not aware of the nature of his health needs or that if his condition was to deteriorate, he would be denied appropriate treatment, including transportation to a hospital.  

63.	There is no recent medical evidence to suggest that his health has seriously deteriorated since his incarceration such as to suggest that his continued detention is life threatening.  The authorities make clear that a fresh medical report close to the bail application is necessary (Ere v The State (supra) at [11]). The most recent report before the Court is Dr Boko’s report of 27 September 2023.

64.	The Correctional Services are obliged under the Correctional Services Act 1995 to provide for the welfare of detainees (see ss. 7, 13, 67, 122, 123, 124, 126, 141). It includes accommodation, food, standards of hygiene and access to medical care including a private doctor with approval and at the prisoner’s expense.  On this matter I respectfully adopt the observations of Justice Dingake at [9] – [11] of his published reasons dated 6 October 2023.  
 
65.	I accept the submission on behalf of the State that the welfare of Mr Paraka whilst in prison is a matter for the correctional institution.  Mr Paraka has open to him legal processes to enforce his rights in the event of a denial of his rights, including access to appropriate medical treatment or consultation with a lawyer.  His application for bail is not the correct process for the enforcement of those rights on the evidence before me.

66.	For all of these reasons I am not satisfied that Mr Paraka has made out exceptional circumstances based on medical grounds.

Preparation and prosecution of his appeal

67.	Mr Paraka deposes to being unable to properly prepare his various appeals, including on sentence, as a consequence of his incarceration and advances this as a ground for his need to be on bail.

68.	However this ground does not present as an exceptional circumstance.  Mr Paraka is well educated. He is also fortunate to be a trained lawyer with over 20 years experience in practice.  He represented himself before me yesterday with confidence. He was well prepared.  He was able to articulate the relevant issues as viewed by him displaying an impressive recall of the evidence and relevant case law.  

69.	Since his incarceration on 4 October 2023 he has been able to file in this Court extensive material, including in support of various urgent applications pending the hearing of his bail application.  I accept the submission of Counsel for the State that his preparation does not suggest a lack of time or dented facilitation whilst incarcerated to prepare. I accept that it would be more convenient for him to be in his office to do so, however that inability and the other constraints posed by his incarceration do not present as an exceptional circumstance justifying bail. 

70.	Further, it is unclear how much further preparation is required prior to the substantive appeals being heard, one of which he tells me is at the end of this month. This is because of the material already filed and his demonstrated grasp of the issues.  Other than the preparation of an appeal book and an amendment to include an appeal against sentence, much of the work appears to be done.  

71.	Even however if that was not the case, I am not satisfied that his submissions in that regard suggest exceptional circumstance.  Under the Corrections Services Act (see s.72) he is entitled to at least one weekly visit of no less than an hour by a relative or friend, who may able to provide some practical assistance with copying and the like.

72.	If he is able to secure legal representation he would be able to instruct his lawyers and receive visits (see s.75; see also Smedley v The State (supra)).  

73.	This ground does not present as an exceptional circumstance such as to support a grant of bail.

74.	I also do not consider that any of the other grounds of his application have sufficiently established an exceptional circumstance.  A likely disbarment from practice or staff shortage does not present as an extraordinary circumstance.  If Mr Paraka is unable to secure the services of a lawyer he is able to continue to act for himself as he has done to date. Disbarment will not preclude self-representation. 
 
75.	As to family members being disadvantaged because Mr Paraka is the only breadwinner in his family and he is unable to continue to practise as a lawyer, this is not an extraordinary circumstance. It is not an uncommon occurrence when a person is imprisoned that a family member is disadvantaged as a consequence. It can be viewed as a natural consequence of conviction (see John Jaminan v The State (supra)).  

76.	Taking into account all of the facts and the matters raised in submissions I find that the grounds advanced individually or cumulatively by the applicant do not establish exceptional circumstance warranting the grant of bail pending his appeal.

77.	In informing my discretion to this end, I have also considered the additional factor raised on submissions by Mr Paraka, namely, that he has met the terms of previous grants of bail, including between conviction and sentencing. It is not an additional factor persuasive of grant of bail.

78.	Bail is accordingly refused and his application dismissed.

AMENDED APPLICATION 

79.	With respect to the Amended Application filed 16 October 2023, Mr Paraka relies upon ss. 96, 100 and 141 of the Correctional Services Act, s. 5(1)(a) & (b) of the Supreme Court Act and ss. 37(1), 37(3) and 57(3) of the Constitution.  
80.	During oral submissions he also referred the Court to s. 22 of the Supreme Court Act and s. 37(11), (15) and (16) of the Constitution.

81.	I do not view those sections and the submissions advanced in support as singularly or collectively supporting the orders sought by him. 

82.	With respect to the Correctional Services Act, s.96 relevantly provides for the Commissioner to transfer detainees from place to place within an institution. 

83.	Section 100 provides for the safe custody of a detainee while in a medical facility.

84.	Section 141 provides that a detainee has a right to reasonable medical care and treatment consistent with community standards and that a detainee may with the approval of the Departmental Head of the Department responsible for health matters, but at the expense of the detainee, have access to a private medical practitioner.

85.	Section 5(1)(a) of the Supreme Court Act provides that when an appeal is pending before the Supreme Court a Judge may make a direction not involving the decision on appeal and s.5(1)(b) goes on to provide that the Judge may also make an interim order to prevent prejudice to the claims of the parties. 

86.	Section 22 is a provision that provides that a person convicted in the National Court may appeal to the Supreme Court and makes reference to various grounds in that regard.

87.	The provisions referred to under s.37 can be broadly described as human rights protections afforded to persons under the law, especially to persons in custody and the enforcement of their guaranteed rights and freedoms.

88.	Section 57(3) also relates to the enforcement of guaranteed rights, the Court exercising jurisdiction under s. 57(1) able to make orders necessary or appropriate for the purposes of the section.

89.	I do not accept the submission that Mr Paraka needs to be on bail to fully exercise his constitutional rights either with respect to the preparation of his case or otherwise.

90.	Having considered the fulsome material filed by him and his capacities in evidence yesterday before me to advance his case, I do not accept that Mr Paraka’s continued imprisonment is likely to impede his capacity to adequately prepare or represent himself before the appeal court.  

91.	If he requires a leave of absence from jail he has a right to seek that by following the necessary procedures to that end.

92.	Whilst questions of fact and degree, inconvenience, shared accommodation, uncomfortable bedding, the food provided, and the other matters he raises on the evidence do not per se or taken as a whole suggest a breach of his human rights or his right to the full protection of the law.

93.	In due course he will have the opportunity to fully advance his arguments about miscarriage of justice and the fairness of his trial before the appellate court.

94.	I otherwise accept the submissions by Counsel for the State opposing his application, including that it is premature.  

95.	I otherwise repeat and rely upon findings with respect to my earlier discussion of the statutory obligations that already exist to ensure his welfare and health whilst in prison and the rights that he has in that regard.

96.	Over and above the matters I have outlined, there is an absence of evidence addressing the practical considerations posed by the orders he seeks with respect his transfer to the care of Dr Boko. With respect to his transfer to the care of Dr Boko, there is no evidence from Dr Boko that he is willing to have Mr Paraka released into his care and what that may practically entail.  There is no evidence of how long Mr Paraka could remain in Port Moresby General Hospital if transferred there, given that there is no evidence in Dr Boko’s report of 27 September 2023 to suggest that he requires hospitalization other than for the purpose of the stenting procedure to be undertaken.  It is trite to say that hospitals are not hotels.  They usually seek to admit and discharge patients on a timely basis. 

FINAL ORDERS

97.	Bail is refused and the application for bail filed 4 October 2023 is dismissed.

98.	The Amended Application filed 16 October 2023 is dismissed.

99.	A Certificate of Refusal of Bail will issue forthwith.

100.	Publication of these reasons to issue forthwith with a copy provided to the parties.
__________________________________________________________________
Paul Paraka: The Applicant in Person
Public prosecutor: Lawyers for the Respondent