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Paraka v State [2024] PGSC 121; SC2648 (30 October 2024)

SC2648

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 20 OF 2023

PAUL PARAKA
Appellant

THE STATE
Respondent

Waigani: Cannings J, Manuhu J, Yagi J
2024: 24^th September, 30^th October

CRIMINAL LAW – appeal against conviction for misappropriation, Criminal Code, s 383A(1)(a), (2)(d) – whether trial conducted with procedural irregularities – whether indictment properly presented under Criminal Code, s 526 – whether bank records lawfully admitted into evidence – whether law on entering convictions on circumstantial evidence complied with – whether elements of offence properly and fairly considered by trial judge – whether findings of fact made by trial judge has evidentiary basis – whether trial judge gave insufficient consideration to submissions of accused resulting in denial of a fair hearing.

The appellant, who owned and managed a law firm bearing his name, appealed against his conviction in the National Court of five counts of misappropriation of property of the State under s 383A(1)(a) and (2)(d) of the Criminal Code. The National Court found that his firm or a company owned and controlled by him received the proceeds of 65 Department of Finance cheques totalling approximately K162 million over a five-year period from 2007 to 2011 without lawful authority or justification, which meant that property of the State, which remained the property of the State, was applied to the use of the appellant. The National Court found that the five offences of misappropriation charged in the indictment were committed by a person or persons within the Department of Finance and that the appellant procured, ie caused, the perpetrator(s) to commit the offences and that he did so dishonestly, which meant he also committed the offences by virtue of s 7(1)(d) of the Criminal Code. The appellant’s supplementary notice of appeal raised 71 grounds of appeal grouped into seven categories: (A) procedural irregularities; (B) ex officio indictment; (C) search warrants; (D) trial; (E) elements of misappropriation; (F) two-tier trial: trial in open court versus findings based on outside facts; (G) insufficient consideration of accused’s submissions.

Held:

(1) All 71 grounds of appeal were dismissed. The Supreme Court was not persuaded that the verdict was unsafe or unsatisfactory or that the judgment of the should be set aside or that there was a material irregularity in the course of the trial.

(2) Appeal dismissed.

Cases Cited:
The following cases are cited in the judgment:

Papua New Guinean Cases
Alex v Golu [1983] PNGLR 117
Application by Herman Joseph Leahy (2006) SC855
Application by Herman Joseph Leahy (2006) SC981
Boateng v The State [1990] PNGLR 342
Constitutional Reference No 1 of 1977 [1977] PNGLR 362
Golu v National Executive Council (2011) N4425
Kavo v Francis (2016) N6568
Kavo v The State [2015] 2 PNGLR 232
Paraka v Bidar (2018) N7443
SC Ref Nos 2, 3 & 5 of 2014, References by National Court & Principal Legal Adviser re Powers, Functions, Duties & Responsibilities of the Commissioner of Police [2014] 2 PNGLR 350
The State v Evertius and Kundi [1985] PNGLR 109
The State v Kasiman (2023) N10560
The State v Paraka (2020) N8229
The State v Paraka (2020) N8608
The State v Paraka (2021) N8807
The State v Paraka (2021) N8938
The State v Paraka (2021) N9159
The State v Paraka (2022) N9568
The State v Paraka (2022) N9970
The State v Paraka (2023) N10273
The State v Paraka (2023) N10484
Workers Mutual Insurance (PNG) Ltd (in Liq) v Sathasivam Sivakumaran (2013) N4987
Yama v Bank South Pacific Ltd (2008) SC921

Overseas Cases
Johnson v Johnson [2000] HCA 48

Counsel
P Paraka, the appellant, in person
H Roalakona & M Mosoro, for the Respondent

30^th October 2024

1. BY THE COURT: The appellant, Paul Paraka, who owned and managed a law firm bearing his name, Paul Paraka Lawyers, appeals against his conviction in the National Court of five counts of misappropriation of property of the Independent State of Papua New Guinea under s 383A(1)(a) and (2)(d) of the Criminal Code. The National Court found that his firm or a company owned and controlled by him, PKP Nominees Ltd, dishonestly received the bulk of the proceeds of 65 Department of Finance cheques, being the property of the State, totalling approximately K162 million over a five-year period from 2007 to 2011 without lawful authority or justification, and that he applied that property to his own use or the use of others.

2. The appellant was sentenced to 20 years imprisonment (The State v Paraka (2023) N10484). He has been serving the sentence in custody since 4 October 2023. He has been granted leave to appeal against sentence, in SCRA 37 of 2023. The appeal against sentence has been separated from this appeal against conviction and will be heard if this appeal is unsuccessful.

3. The National Court found that the five offences of misappropriation charged in the indictment were committed by a person or persons within the Department of Finance and that the appellant procured, ie caused, the perpetrator(s) to commit the offences and that he did so dishonestly, which meant that he committed the offences by virtue of s 7(1)(d) of the Criminal Code.

4. The trial judge, Justice Berrigan, summarised the reasons for decision under the heading Conclusion at paragraphs 400 to 413 of the decision on verdict, delivered on 26 May 2023 (The State v Paraka (2023) N10273):

400. For all the evidence and argument in this case, the essential facts are quite straightforward. Extremely large amounts of monies belonging to the State were paid to the ultimate benefit of the accused every year between 2007 and 2011 to which he had no entitlement. The monies were paid to a company solely owned and operated by the accused but not bearing his name, or siphoned through the accounts of seven other law firms, none of which had any entitlement to the monies, in an elaborate scheme designed to distance the monies from the accused and avoid detection.

401. The evidence established beyond reasonable doubt that cheques were raised by a person or persons in DoF [Department of Finance] in favour of the following recipients:

• PKP Nominees and five law firms, Sam Bonner Lawyers, Harvey Nii Lawyers, Sino & Company Lawyers, Yapao Lawyers and Korowi Lawyers to the total value of K30,300,000 in 2007.

• PKP Nominees and three law firms, Sino & Company Lawyers, Jack Kilipi Lawyers and Korowi Lawyers to the total value of K30,054,312.68 in 2008.

• PKP Nominees and two law firms, Sino & Company Lawyers, and Jack Kilipi Lawyers to the total value of K14,480,672.28 in 2009.

• PKP Nominees and five law firms, Harvey Nii Lawyers, Sino & Company Lawyers, Jack Kilipi Lawyers, Korowi Lawyers and Kipoi Lawyers to the total value of K39,808,610 in 2010.

• PKP Nominees and two law firms, Sino & Company Lawyers and Jack Kilipi Lawyers to the total value of K47,608,300 in 2011.

402. The monies held to the credit of the State with BPNG [Bank of Papua New Guinea] and controlled by DoF, and upon which the cheques payable to PKP Nominees and each of the seven law firms were raised, were property belonging to the State.

403. The evidence excluded any rational possibility that the cheques were raised for any State purpose. They were not raised to meet the legal fees or judgment debts of any of the recipients, or for any ex gratia, ad hoc or any other State purpose. The cheques were not raised in favour of or to meet the legal fees or judgement debts of the accused or his law firm, PPL, or for any ex gratia, ad hoc or other State purpose.

404. The cheques were deposited to the respective payees’ accounts. In the case of the monies paid to the law firms, the bulk of the proceeds of the cheques were almost immediately paid on to PPL or PKP Nominees, the accused’s law firm and wholly owned company, respectively.

405. The evidence established beyond reasonable doubt that at the time the cheques were raised property belonging to the State was deflected from the purposes of the State and applied to the accused’s own use and the use of others, Easton v R ... [[1994] 1 Qd R 532] adopted and applied.

406. The State therefore retained an interest in the property and was its owner: Brian Kindi Lawi v The State [1987] PNGLR 193 applied.

407. The evidence established beyond reasonable doubt that the person or persons in DoF who applied the property to the accused’s own use and the use of others did so dishonestly, having regard to: the size, number and frequency of the cheques raised; the extended period over which that took place; the clustering of cheques in some instances; and the fact that the monies were purportedly paid in settlement of legal fees when DoF does not pay legal fees; or in settlement of court orders when no such orders had been certified by the Solicitor-General; or in repeated settlement of legal fees or orders in OS 876 of 2006 when none of the payments made matched the orders in value or beneficiary; and when the cheques were not sent to DJAG [Department of Justice & Attorney-General] for distribution; and having regard to the experience and intelligence necessarily required of a person employed in DoF.

408. The evidence established beyond reasonable doubt that the accused procured the person or persons in DoF to commit the offences in each case, having regard to all of the circumstances and the fact that the accused was the ultimate beneficiary. The monies constituted the principal form of deposits to the accounts of PPL and PKP Nominees between 2007 and 2011. Expenditure of the monies began soon after deposit in every case and the monies were dissipated.

409. The evidence established beyond reasonable doubt that the offences charged in the indictment were committed, that the accused knew the essential facts constituting the offences in each case, including the state of mind of the person who committed the offences, and that he procured, that is caused the perpetrator to commit the offences in each case, for the purposes of establishing his liability pursuant to s 7(1)(d) of the Criminal Code. The accused was therefore guilty of committing the offences applying s 7(1)(d) of the Criminal Code.

410. In making this finding I make it clear that the totality of the evidence, the size, nature, frequency and extended period over which the property was applied, the total value of the property concerned, the elaborate nature of the scheme involved, and the monies given away by the accused as part of the scheme, excluded any rational possibility that the accused acted in an honest claim of right and without intention to defraud.

411. The combination of circumstances leads to the inevitable conclusion beyond reasonable doubt that the accused dishonestly applied the monies belonging to the State the subject of Counts 1 to 5 of the indictment to his own use and the use of others. The State’s evidence excluded beyond reasonable doubt any other reasonable conclusion that is inconsistent with the guilt of the accused.

412. It is the case that I have found that the sum involved varied in Count 5 from that averred in the indictment. The value of monies is not an essential element of the offence and there is no prejudice to the accused in the finding.

413. The accused is found guilty of dishonestly applying to his own use and the use of others the following property belonging to the State, contrary to s 383A(1)(a)(2)(d) of the Criminal Code:

• K30,300,000 on Count 1 of the indictment.

• K30,054,312.68 on Count 2 of the indictment.

• K14,480,672.28 on Count 3 of the indictment.

• K39,808,610 on Count 4 of the indictment.

• K47,608,300 on Count 5 of the indictment.

The total amount of State money involved is K162,251,894.96.

GROUNDS OF APPEAL

5. The appellant’s supplementary notice of appeal, filed 13 November 2023, contains 71 grounds of appeal, which are pleaded in paragraph 3 of the supplementary notice of appeal and numbered 3.1 to 3.71. In this judgment we omit the paragraph number 3 from our description of the grounds and refer to them simply as ground 1 (rather than 3.1) consecutively up to and including ground 71 (rather than 3.71).

6. The 71 grounds of appeal are grouped into seven categories, (A) to (G), which we summarise as follows:

(A) Procedural irregularities (12 grounds, Nos 1-12): it is argued that the trial was irregularly conducted in that: there was no direct evidence of commission of the offences, the trial judge relied overly on uncorroborated circumstantial evidence and failed to find that the State failed to call material witnesses, disregarded the legal presumption of regularity, failed to find that the State had failed to prove all elements of the offence of misappropriation, relied on a table of bank transactions of law firms that was not admitted into evidence, erred in relying on unlawfully obtained bank records and in convicting the appellant when others allegedly involved in the transactions were found not guilty of other underlying offences; it is further argued that the trial judge appeared to be biased against the appellant and erred by conducting the trial without jurisdiction in breach of s 5 of the Audit Act and ss 37(2) and (11) of the Constitution and as an abuse of process, which was based on an unlawful criminal investigation.

(B) Ex officio indictment (6 grounds, Nos 13-18): it is argued that the trial judge erred in law in accepting a defective indictment contrary to the requirements of ss 526, 528 and 531 of the Criminal Code and ordering an amendment of the originally presented indictment and failing to quash the indictment under s 558 of the Criminal Code and consequently denying the appellant a fair hearing and natural justice as required by ss 37(3) and 59 of the Constitution.

(C) Search warrants (3 grounds, Nos 19-21): it is argued that the trial judge erred in admitting bank documents into evidence contrary to the finding that the documents were unlawfully obtained, in breach of the Search Act and ss 11, 44, 49 and 57(3) of the Constitution.

(D) Trial (13 grounds, Nos 22-34): it is argued that the trial judge misapplied the law on circumstantial evidence and erroneously concluded that the elements of the offence of misappropriation were proven despite there being no direct evidence against the appellant and a reasonable doubt about his guilt and erred by accepting the evidence of the State witnesses without proper scrutiny and relying on a table of transactions annexed to the judgment on verdict, which was not in evidence.

(E) Elements of misappropriation (25 grounds, Nos 35-59): it is argued that the trial judge unlawfully and unduly participated in the trial and erred by failing to rule that the element of “property” in s 383A(1)(a) and 3(a) and 1 of the Criminal Code was not established and failing to make findings in respect of each specific cheque payment in each of the five counts on the indictment and in finding that the State was the owner of the property and finding that the appellant applied the property to his own use or the use of others and in finding that the appellant counselled or procured unidentified persons in the Department of Finance to make 65 cheque payments.

(F) Two-tier trial: trial in open court versus findings based on outside facts (11 grounds, Nos 60-70): it is argued that the trial judge erred by adopting a two-tier approach in the trial by inventing misapprehended facts after the end of the trial by basing conviction on a bank transaction report as table 1 (annexed to the judgment on verdict) which was not admitted into evidence and on which the appellant had no opportunity to comment.

(G) Insufficient consideration to accused’s submissions (1 ground, No 71): it is argued that the trial judge failed to consider the appellant’s written and oral submissions, resulting in the appellant being denied a fair hearing and natural justice contrary to ss 37(3) and 59 of the Constitution.

APPROACH TO THE GROUNDS OF APPEAL

7. Many grounds are expressed as submissions rather than appeal grounds, The drafting of many offends against Order 7 rule 9(c) of the Supreme Court Rules 2012, which states:

The notice of appeal shall ... state briefly but specifically the grounds relied upon in support of the appeal.

8. The grounds of appeal are numerous and lengthy and occupy 30 pages of the 32-page supplementary notice of appeal. They do not briefly state the grounds relied on. Ground 1 for example is two and a half pages in length and contains, in paragraphs (a) to (o),15 sub-grounds.

9. Many grounds of appeal overlap and are repetitive. However, the State took no issue with the drafting of the grounds and we presume that it has not been prejudiced. We have decided that with some exceptions the best approach, to ensure that the grounds of appeal are given due and appropriate consideration, is to quote the ground verbatim and then consider and determine it.

10. The exceptions are where unnecessary and elaborate details, in the nature of submissions, are provided. For example, after ground 34 (at the end of page 15), which is the last ground in category D (trial) and before ground 35 (at the beginning of page 22), which is the first ground in category E (elements of misappropriation), there are six pages devoted to arguing that the trial judge erred in law by: accepting the evidence of seven named witnesses, admitting into evidence seized bank documents, making findings based on a summary of transactions appearing in table 1 (which is an annexure to the judgment on verdict), drawing inferences and conclusions and making findings when there was no evidence to suggest that the only rational inference was the guilt of the appellant, failing to entertain a reasonable doubt in respect of all elements of the offence, failing to rule that the prosecution failed to call the principals of the seven law firms allegedly by the State, failing to rule that the State failed to undertake a thorough investigation and failing to rule that the State failed to prove the money trail, which cast reasonable doubt on the State’s case.

11. All the points raised in those six pages are made elsewhere in the supplementary notice of appeal. Furthermore, they appear to be inserted in a vacuum, being neither a part of ground 34 nor a part of ground 35. Though we have considered that material, we do not quote the contents of those six pages.

12. Likewise with ground 39, which forms part of category E, and starts at page 23. It begins by arguing error of fact and law on the part of the trial judge “in failing to make findings in respect of each specific cheque payments by the Department of Finance in each of the five counts”. Three pages are then devoted to pleading largely repetitive particulars of that argument in respect of each of the five counts. Though we have considered that material, we do not quote the contents of those pages.

13. We now set out, consider and determine the grounds of appeal in the order that they appear in the supplementary notice of appeal.

(A) PROCEDURAL IRREGULARITIES

14. There are 12 grounds, Nos 1-12, in this part of the supplementary notice of appeal.

Ground of appeal 1 states:

The trial judge erred in law and fact and found the accused guilty of the charges where the trial was not properly structured and was irregularly conducted when:

No Direct Evidence

(a) The single indictment rolled up a total of 65 alleged DOF cheques payments/transactions to 7 different Law Firms and PKP Nominees Ltd in a single composite charge and tried in breach of s 531(1) of the Criminal Code Act.

(b) Each of the 65 DOF cheque payments/transactions were not tendered into evidence by the Prosecution witnesses and were not proved by the payment details, dates, amount and cheque numbers against each of the 5 counts.

(c) No payment vouchers (comprising FF3 and FF4 Forms and invoices, and approvals) were tendered into evidence to support each of the alleged cheque transactions against each count.

(d) There were no evidence that any of the cheques/transactions were paid to the accused directly.

(e) No witnesses from the DOF gave any specific evidence of the purposes of the 65 different cheque payments to prove the allegations in each of the 5 counts.

(f) The trial judge erred in law and fact in failing to make specific findings against each of the 65 alleged cheque payments/transactions and how each of the single cheque was connected to the accused in each of the 5 counts.

Circumstantial Evidence; Material Witnesses

(g) The trial judge erred in law and fact in failing to find that the failure of the State to call all relevant material witnesses from the Department of Finance, Department of Justice & Attorney General, Sweep Team, Police Commissioner and the Auditor-General and all the 7 Law Firms and PKP Nominees Ltd and other material witnesses which had cast considerable doubt in the allegations and elements of the offence of misappropriation and it was not possible to make a rational inference that the accused was guilty; there were other rational inferences too under the circumstances.

Remote Witnesses/Conjectures, Surmises and Analytical Assumptions

(h) The trial judge erred in law and fact in relying on the uncorroborated circumstantial evidence of the 11 State witnesses whose testimonies were too remote to assist in any essential manner and there were considerable doubt for any reasonable inferences to be drawn by way of circumstantial evidence.

(i) The case was based substantially on conjectures and surmises and analytical assumptions, and no reasonable tribunal of fact could have convicted the accused.

Presumption of Regularity

(j) The Court erred in law in failing to find that in the absence of strong contrary evidence from the State, the alleged payments to PKP Nominees Ltd and 7 Law Firms were lawful based on the legal presumption of regularity at Common Law.

Accused remain silent

(k) Her Honour erred in law in failing to find that the State had failed to prove all the essential elements of the offence of misappropriation beyond reasonable doubt where at the close of the State’s case the accused exercised his right to remain silent.

Evidence/Findings from outside the trial/Undue Participation by trial Judge

(l) The trial judge erred in law and fact in unduly participating in the trial by relying entirely on a Annexed Table 1 involving alleged Bank Transactions of the Law Firms of the Judgement from [290] to [415] after the fact in making its findings when these purported evidence/facts were not properly in evidence before the trial Court during the hearing, and the accused has been denied of his rights to natural justice and a fair hearing under ss 37(3) and 59 of the Constitution.

Bank Transactions/Records unlawful

(m) The trial judge erred in law in relying on the bank records of the 7 law firms and PKP Nominees Ltd which has been declared unlawful by the same Court on the 24 March, 2022 in a voir dire hearing and unlawfully admitted into evidence in the exercise of the Common Law discretion and discretion under the Constitution in breach of s 6 of the Secrets Act and ss 11, 44, 49 and 57(3) of the Constitution, and the Underlying Law Act 2000.

Ref: The State v Paul Paraka (2022) N9568.

(n) The trial judge further erred in law in refusing to revisit her own earlier decision and set-aside the Bank documents in the improper exercise of her discretion under ss. 11, 44, 49 and 57(3) of the Constitution and s 6 of the Search Act and the Underlying Law Act 2000.

Ref: The State v Paul Paraka (2023) N10273 at [185] to [207].

Guilty Verdict

(o) The trial judge erred in law in finding the accused guilty when:

(i) none of the cheques were paid to him personally by the State;

(ii) there were no evidence that the accused caused the payments to be made to the Law Firms;

(iii) the cheques were paid to other entities with no evidence of the accused’s direct involvement;

(iv) the principals of the law firms and Directors of PKP Nominees Ltd were not found guilty of any other underlying offences.

15. As to ground 1(a), it is not correct to say that “the single indictment rolled up a total of 65 alleged DOF cheques/transactions ... in a single composite charge”. The original indictment contained one charge, alleging misappropriation of K162,860,194.96, the property of the Independent State of Papua New Guinea from 1 February 2007 to 31 December 2011. However, the trial judge ordered on 23 April 2021, for reasons given in The State v Paraka (2021) N8807, that the indictment be amended to reflect five counts of misappropriation on an annual basis. The amendment was brought about largely at the appellant’s request as he submitted that it was prejudicial and embarrassing for the allegations to be lumped together in a five-year period and that the originally presented indictment ought to be quashed.

16. The amendment was ordered under s 558(2)(b) of the Criminal Code. Section 558 states:

(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.

17. The appellant argues that he was charged and tried in breach of s 531(1) of the Criminal Code, which provides that “an indictment must charge one offence only, and not two or more offences”.

18. That subsection must, however, be read in the context of the whole of s 531, which begins with the words “Subject to this Code”. Section 531 states:

(1) Subject to this Code, an indictment must charge one offence only, and not two or more offences.

(2) Subject to Subsection (3), when several distinct indictable offences are alleged to be constituted–

(a) by the same acts or omissions; or

(b) by a series of acts done or omitted to be done in the prosecution of a single purpose,

charges of such distinct offences may be joined in the same indictment against the same person, and the several statements of the offences may be made in the same form as in other cases, without any allegation of connection between the offences.

(3) If in a case to which Subsection (2) applies, it appears to the court that the accused person is likely to be prejudiced by the joinder, the court may–

(a) require the prosecutor to elect on which of the several charges he will proceed; or

(b) direct that the trial of the accused person on each or any of the charges be had separately.

(4) This section does not authorize the joinder of a charge of wilful murder, murder or manslaughter with a charge of any other offence.

19. Put another way, the appellant is arguing that the amended indictment offended against the rule against duplicity. We consider that the trial judge adequately and properly addressed that argument in the ruling in The State v Paraka (2021) N8807.

20. Her Honour elaborated on her reasoning in that ruling when ruling, on 13 July 2021, on another motion to quash and permanently stay the amended indictment (The State v Paraka (2021) N8938). Her Honour stated:

35. In particular, the accused submits that each of the five counts “roll up” several payments and therefore contain several offences in a single count contrary to s 531(1), (2) and (3) of the Criminal Code and are bad for duplicity.

36. I omitted to refer to s 531 in my decision of 23 April 2021 but I specifically considered the issue of duplicity, which has been codified in s 531, and dismissed it for the reasons set out at [258] to [274]. It is not necessary to repeat all of them here. At [267] I said that:

“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.”

37. For the same reasons that it was permissible for the indictment to charge the dishonest applications in one count over a five-year period, it is permissible for each of the five counts in the indictment to charge the applications in any one year. The alleged offence in each of the five counts are constituted “by a series of acts done or omitted to be done in the prosecution of a single purpose” for a particular year for the purposes of s 531(2)(b) of the Criminal Code, that is the dishonest application of State monies by the accused to his own use and the use of others.

38. The accused also contends that the joinder of the five counts in the indictment is in breach of s 531. Again, the five counts are constituted by a series of alleged acts done or omitted to be done in the prosecution of a single purpose but over a successive five-year period.

39. The accused also seems to raise an alternative argument where he concedes that the counts would have been permissible but only if the single purpose was expressly stated in each of the counts. Section 531 does not require that but in any event the single purpose is clear in this case.

40. The accused has failed to identify any prejudice to his defence arising from the five charges. The accused says that there should be 67 charges in 67 separate indictments. In my view it would be oppressive to require an accused person to face 67 separate trials. There is no such oppression in requiring the accused to face one trial concerning a series of applications here reflected in five counts on an annual basis.

41. Ultimately, the question with respect to the number of charges, or the length of a charging period, is one of fairness, and whether the accused is properly informed of the case against him. Each of the counts in this case clearly identify the relevant period and the monies concerned.

42. There was no error in the State’s original indictment but it did concern a very large amount of money over a five-year period. The amendment of the single count in the indictment was only made by me in response to the accused’s contention that he was entitled to be charged on an annual basis. He was not so entitled but I did order the amendment to facilitate the conduct of the trial given the very large sum of monies involved. I hardly expected that the accused would take objection to the very thing he demanded.

43. The indictment is not in breach of s 531 of the Criminal Code and is not duplicitous. There is no prejudice requiring an election by the prosecutor of which charge he wishes to proceed and no need for separate trials on each of the five counts. The grounds are dismissed.

21. We endorse and uphold the trial judge’s reasoning. We reject the argument that the appellant was charged and tried in breach of s 531(1) of the Criminal Code. We dismiss ground of appeal 1(a).

22. As to grounds 1(b) and (c), it is correct that there was not, for each and every one of the 65 Department of Finance cheques that were the subject of the five charges, payment vouchers comprising FF3 and FF4 forms and invoices and approvals. However there was ample admissible evidence on which the trial judge could, and did, make the findings of fact that:

the proceeds of 25 Department of Finance cheques were in the period from 2007 to 2011 deposited into the bank account of the appellant’s company, PKP Nominees Ltd; and
the proceeds of 40 Department of Finance cheques were in the period from 2007 to 2011 deposited into the bank accounts of seven different law firms (Sino & Company Lawyers, Jack Kilipi Lawyers, Harvey Nii Lawyers, Sam Bonner Lawyers, Korowi Lawyers, Kipoi Lawyers, Yapao Lawyers) – and from there to the bank accounts of the appellant’s law firm, Paul Paraka Lawyers, or his company, PKP Nominees Ltd.

23. Her Honour’s findings of fact are summarised at paragraphs 290 to 292 of the decision on verdict:

290. I have reviewed the PGAS reports and bank records, primarily bank statements, of PPL, PKP Nominees, and the seven law firms, and summarised my findings in Table 1, which is annexed to this decision. The details set out in the narrative columns are taken verbatim from the PGAS reports or the bank statements as indicated.

291. The records establish beyond reasonable doubt that between 2007 and 2011 25 cheques were paid by DoF to PKP Nominees in the amounts set out in Table 1. Apart from one for K500,000, the payments ranged in size from about K1 m to almost K5 m.

292. The records also establish beyond reasonable doubt that between 2007 and 2011 a further 40 cheques were paid by DoF to one of seven law firms, namely Harvey Nii Lawyers, Sino & Company Lawyers, Sam Bonner Lawyers, Yapao Lawyers, Korowi Lawyers, Jack Kilipi Lawyers and Jack Kipoi Lawyers, at various times, in the amounts set out in Table 1. The cheques ranged in value from K1.5 m to almost K4 m. Furthermore, where the cheques were paid to one of the named law firms, the bulk of the proceeds of those cheques was then paid to PPL or PKP Nominees, usually within a matter of days if not the same day.

24. There is no rule of law that requires a misappropriation charge based on government cheque payments to be supported in each and every case of a cheque payment by payment vouchers and the like. There was no error of law or fact committed by the trial judge in the manner contended for in grounds 1(b) or (c). We dismiss those grounds of appeal.

25. As to ground 1(d), it is correct that there was no evidence that any of the proceeds of the 65 Department of Finance cheques were paid directly to the appellant. However, there was evidence that his firm, Paul Paraka Lawyers, or his company, PKP Nominees Ltd, was paid the bulk of the proceeds of the 65 cheques within a matter of a day or two and sometimes the same day that the cheque was deposited into a bank account. The entry of a guilty verdict was not affected by there being no evidence that any of the proceeds of the 65 Department of Finance cheques were paid directly to the appellant. We dismiss ground of appeal 1(d).

26. As to ground 1(e), it is correct that no witnesses from the Department of Finance gave specific evidence of the purposes of the 65 cheque payments. However, it does not follow that the cheques were drawn for proper purposes. There was evidence that none of the seven law firms that were payees of 40 of the cheques had received brief-outs from the State in the relevant period. There was evidence that PKP Nominees Ltd, which was the payee on 25 of the cheques, was not owed any legal fees and had not secured judgment in any case during the relevant period from 2007 to 2011. The entry of a guilty verdict was not affected by there being no evidence from any of the Department of Finance witnesses regarding the purposes of the 65 cheque payments. We dismiss ground of appeal 1(e).

27. As to ground 1(f), it is not correct to say that the trial judge failed to make specific findings regarding each of the 65 cheque payments and how each cheque was connected to the appellant. Her Honour dealt with the issue of connection between each cheque payment and the appellant in the following passages of the judgment on verdict:

292. The records also establish beyond reasonable doubt that between 2007 and 2011 a further 40 cheques were paid by DoF to one of seven law firms, namely Harvey Nii Lawyers, Sino & Company Lawyers, Sam Bonner Lawyers, Yapao Lawyers, Korowi Lawyers, Jack Kilipi Lawyers and Jack Kipoi Lawyers, at various times, in the amounts set out in Table 1. The cheques ranged in value from K1.5m to almost K4m. Furthermore, where the cheques were paid to one of the named law firms, the bulk of the proceeds of those cheques was then paid to PPL or PKP Nominees, usually within a matter of days if not the same day.

293. The first entry in the table is illustrative. PGAS records show that on 26 April 2007 a cheque in the sum of K1.5m was drawn by DoF in favour of Sam Bonner Lawyers for “O/S Legal Fees OS876/20”. Bank records show that on 27 April 2007 K1.5m was deposited by BPNG to Sam Bonner Lawyers Account, No 1001252784. On the same day K1.1m was withdrawn from Sam Bonner Lawyers Account and deposited, again on the same day, to the account of PPL, No 1000586112.

294. The pattern of onward payment to PKP Nominees or PPL is repeated for all payments made by DoF to the law firms between 2007 and 2011, albeit that the amount that the recipient law firms retained in each case varies from about K30,000 up to about K400,000.

28. The connection between each cheque and the appellant is detailed in table 1, which is an annexure to and an integral part of the reasons for judgment. The trial judge found that the vast bulk of the proceeds of each of the 65 Department of Finance cheques was transferred into the operating accounts of Paul Paraka Lawyers or PKP Nominees Ltd within a day or so, sometimes on the same day, of the proceeds being deposited into the first account.

29. The trial judge found that the appellant was in a position to determine the application of funds in both those accounts. Her Honour on that basis properly determined that there was a sufficient connection between each cheque payment and the appellant. No error of law was committed. We dismiss ground of appeal 1(f).

30. As to ground 1(g), we do not consider that the trial judge erred in law by failing to find that the State had failed to call all relevant witnesses. We note that during the trial the appellant maintained that he could not be found guilty because of the State’s failure to call all material witnesses from the Department of Finance, the Department of Justice and Attorney-General and the seven law firms who were the payees on 40 government cheques. The trial judge addressed this issue at paragraphs 246 to 248 of the judgment on verdict:

246. The accused makes numerous submissions about the failure of the State to call certain witnesses. The principles have been considered in the following cases, which whilst not binding I find persuasive, and which I have considered in The State v Joan Kissip (2020) N8184, at [97] to [104] and The State v Felix Kange (2020) N8488 at [48] et seq.

247. The first thing to make clear is that as a general proposition the prosecution has a discretion as to whether any particular witness should be called. The discretion is not unfettered, however, and must be exercised in the interests of justice so as to promote a fair trial: see Muhammed El Dabbah v Attorney-General for Palestine [1944] AC 156 PC and Apostilides v R [1984] HCA 38; (1984) 154 CLR 563.

248. The ordinary rule is that the prosecution should call all witnesses whose evidence is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, unless valid reason exists for refraining from calling a particular witness or witnesses. Generally all witnesses who can give “material evidence” should be called by the prosecution: R v Harris [1927] 2 KB 587. As the prosecution seeks the truth, it must call evidence favourable and unfavourable to its case (R v Soma [2003] HCA 13; (2003) 212 CLR 299; R v Shaw (1991) 57 A Crim R 425).

31. The trial judge properly took the view that it was the State’s decision to call such witnesses and present such evidence that would support a conviction. The trial judge was consistent in the approach that it was the State’s obligation to prove its case. Her Honour ultimately concluded that that obligation was discharged by stating at paragraph 411 of the judgment on verdict:

32. The trial judge committed no error of law by not finding that the State had failed to call all material witnesses. We dismiss ground of appeal 1(g).

33. As to ground 1(h), it is not correct to say that the evidence of the State witnesses was uncorroborated. Documentary evidence especially bank records of the accounts into which each of the 65 cheques was deposited and showing how and in what amounts the proceeds of each cheque were applied was admitted in evidence. This corroborated the evidence of the eight State witnesses who gave evidence at the trial proper. They were:

Jessy Yore, Department of Finance officer,
Yeme Kaivila, Department of Finance officer,
Ekip Pop, Assistant Auditor-General, Office of the Auditor-General,
Kenneth Mowi, Investment Promotion Authority officer,
Christine Gimots, Office of Solicitor-General officer,
Miriam Kias Kiap, Department of Justice and Attorney-General officer, 2003-2022,
Neville Devete, Solicitor-General, 2007 to 2012,
Senior Sergeant Pius Peng, investigating officer.

34. The documentary evidence corroborated the oral testimony of the State witnesses and supported the State’s case and enabled the trial judge to make the key findings of fact, including that:

the proceeds of 25 Department of Finance cheques were in the period from 2007 to 2011 deposited into the bank account of the appellant’s company, PKP Nominees Ltd; and
the proceeds of 40 Department of Finance cheques were in the period from 2007 to 2011 deposited into the bank accounts of seven different law firms (Sino & Company Lawyers, Jack Kilipi Lawyers, Harvey Nii Lawyers, Sam Bonner Lawyers, Korowi Lawyers, Kipoi Lawyers, Yapao Lawyers) – and from there to the bank accounts of the appellant’s own law firm, Paul Paraka Lawyers, or his company, PKP Nominees Ltd.

35. We reject the argument that the evidence of the State witnesses was too remote to assist in establishing a circumstantial case against the appellant. We dismiss ground of appeal 1(h).

36. As to ground 1(i), the assertion that the case was based substantially on conjectures and surmises and analytical assumptions and no reasonable tribunal of fact would have convicted the appellant is rejected. The case was based on an abundance of real evidence that enabled the trial judge to make the key findings of fact outlined in our determination of grounds 1(b), 1(c) and 1(h).

We dismiss ground of appeal 1(i).

37. As to ground 1(j), the appellant asserts that the cheque payments made to the seven law firms and to PKP Nominees Ltd must be presumed to be lawful “based on the legal presumption of regularity at common law”.

38. We query whether this point was argued before the National Court. If it was, we query whether there is such a presumption and whether there is any precedent for its application in Papua New Guinea. However, even if there is such a presumption, we consider that it was effectively displaced by the State’s evidence that:

most of the 65 cheque payments purported to be for legal fees;
there was evidence that legal fees for brief-outs to private lawyers are managed and authorised by the Office of Solicitor-General;
there was evidence that legal fees are not managed and authorised by the Department of Finance; and
the Department of Finance is responsible for payment of judgment debts.

39. The reasonable inference to be drawn from the evidence was that each of the cheque payments, given the substantial amounts involved and the regularity of the payments to the same law firms or to PKP Nominees Ltd over a period of five years, was unjustified, unauthorised by any proper legal process and irregular.

We dismiss ground of appeal 1(j).

40. As to ground 1(k), we find no error in the trial judge’s process of reasoning that resulted in the conclusion that the State had proven all elements of the offence of misappropriation beyond reasonable doubt. Her Honour considered the fact that the appellant exercised his right to remain silent at paragraph 133 of the judgment on verdict:

133. The accused declined to give evidence himself or to call any other witnesses in his defence. That is his right and I make it clear that I draw no inference of guilt as a consequence. It is the obligation of the State to prove each of the elements of each of the offences alleged in the indictment beyond reasonable doubt.

41. The trial judge did not draw any adverse inference from the appellant’s silence. We dismiss ground of appeal 1(k).

42. As to ground 1(l), the appellant strenuously argues the point – which is repeated or reframed on numerous occasions in other parts of the supplementary notice of appeal – that table 1, which is an annexure to, and an integral part of the judgment on verdict, running from pages 98 to 112, is an item of evidence, which was introduced and relied on by the trial judge after closure of the evidence and after submissions and during the period of deliberation on verdict. We reject that argument.

43. Table 1 is not an item of evidence. Nor does it represent, as claimed by the appellant, facts ‘invented’ by the trial judge. It is a summary, set out as a spreadsheet, that provides details of the trial judge’s findings of fact regarding each of the 65 cheque payments. It is based on the evidence (including in some instances the PGAS narrative in respect of the cheque, and in each instance bank records) which demonstrate the original account into which the cheque was deposited, and trace each cheque’s proceeds through to the account into which the bulk of the proceeds was transferred.

44. The key findings of fact, which are illustrated by table 1, appear at paragraphs 290 to 294 of the judgment on verdict, which we cited above in our determination of ground 1(f) and summarised in our determination of grounds 1(b), (c) and (h).

45. The argument that the inclusion in the judgment on verdict of table 1 as an annexure amounts to the trial judge “unduly participating in the trial ... after the fact” is misconceived. We reiterate that table 1 is not an item of evidence.

46. There was no denial of the rights of the appellant to a fair hearing or to natural justice under ss 37(3) or 59 of the Constitution. We dismiss ground 1(l).

47. In ground 1(m), the appellant argues that the trial judge erred in law by admitting into evidence the bank records of the seven law firms and PKP Nominees Ltd. The alleged error is based on the trial judge’s finding in the judgment on the voir dire (The State v Paraka (2022) N9568) that the bank records were obtained unlawfully. The appellant seems to argue that once it is determined by a court that proposed evidence has been obtained unlawfully, for example through a breach of the Search Act and a consequential breach of an accused’s rights to freedom from arbitrary search and seizure and privacy under ss 44 and 49 of the Constitution, that proposed evidence cannot be admitted. If that is the argument, it is flawed.

48. Documents obtained unlawfully and in breach of an accused’s constitutional rights may nevertheless be admitted into evidence at the discretion of the Court. This discretion exists under both the underlying law, specifically the common law, and the Constitution, specifically s 57(3), which allows the court to make such orders and declarations as are necessary and appropriate for the purposes of protection and enforcement of constitutional rights and freedoms. These principles of evidence have been developed and applied in PNG over a long period, commencing with the Supreme Court decision in Constitutional Reference No 1 of 1977 [1977] PNGLR 362, which has been followed in numerous subsequent cases including Alex v Golu [1983] PNGLR 117, The State v Evertius and Kundi [1985] PNGLR 109 and The State v Kasiman (2023) N10560.

49. Matters to consider in the exercise of the common law discretion include:

the nature and extent of the impropriety;
whether the illegality affects the cogency of the evidence;

the ease with which the documents might have been obtained if the law had been complied with;

the seriousness of the offence with which the accused is charged;
the legislative intent of the law that provides safeguards against the infringement of the rights of the accused;
the degree of unfairness to the accused in admitting into evidence documents that have been unlawfully obtained;
whether any prejudice to the accused is outweighed by the probative value of the documents.

50. The trial judge properly recognised the discretion available to the Court, once it has been determined that evidence has been unlawfully obtained, at paragraphs 204 to 207 of the voir dire judgment (The State v Paraka (2022) N9568):

204. The fact that the bank records were seized unlawfully does not of itself render the documents inadmissible. The court retains a discretion both at common law and a wider power under the Constitution.

205. As above, the protections to freedom from arbitrary search and seizure, and to privacy, are enshrined in the Constitution. Non-compliance with the strict requirements of the provisions of the Search Act is in effect to breach ss 44 and/or 49 of the Constitution, as the case may be: The State v James Popo [1987] PNGLR 286.

206. The power under s 57(3) to exclude evidence has that been obtained in breach under s 57 of the Constitution is separate and independent of the common law discretionary power to reject evidence unlawfully or improperly obtained: John Alex v Martin Golu [1983] PNGLR 117; The State v Evertius and Kundi [1985] PNGLR 109; Constitutional Reference No 1 of 1977 [1977] PNGLR 362; The State v Popo.

207. The onus of proof of satisfying the court that material obtained following a breach of a fundamental right or freedom ought to be prohibited lies with the accused on the balance of probabilities: The State v Evertius and Kundi.

51. The trial judge then addressed at paragraphs 219 to 239 of the voir dire judgment the matters her Honour considered in exercising the discretion to admit the bank records into evidence:

219. In this case there is no evidence before me to establish that the matters rendering the warrants unlawful were deliberate or reckless, reckless meaning that the person in question recognised that the conduct might be improper but determined to engage in it not caring whether it was or was not: Director of Public Prosecutions v Marijancevic [2011] VSCA 355 at [86].

220. It was evident from his testimony that CI Gitua honestly believes an affidavit may be sworn in the absence of a Commissioner. That is a very serious error on the part of a senior officer but it is clear that he did not recognise that his conduct might be improper. There was no deliberate cutting of corners.

221. The fact that the evidence could have easily been procured without illegality also points towards its admission in this case. The failure to swear the affidavits before a Commissioner in person is a vital matter that must be adhered to but the failure to do so could have been easily remedied.

222. Assuming that the affidavit and information in support of Warrants P13 to P15 did fail to disclose sufficient grounds, which is unlikely having regard to the background of the applications, and the stage at which they were obtained, it cannot be said that Mr Paraka has demonstrated that there was any improper conduct on the part of police.

223. The warrants and their underlying affidavits and informations would have benefited from greater uniformity adjusted as required in each particular circumstance. The offence provisions in particular would have benefited from greater particularity. But taken as a whole the evidence shows that CI Gitua and the police officers concerned gave some care and attention to the drafting of ten different warrants in 2013 and a further four in 2014. It is not clear why a warrant in the same terms as P12 was applied for by CI Gitua a couple of months later but I do not understand how it demonstrates bad faith on the part of police.

224. Furthermore, it is clear that there was no broad-brush attempt to obtain all records of the accounts targeted, nor was it a fishing expedition. In many respects the warrants suffered from an attempt to define the items sought in very specific terms. It is also clear from the documents produced that despite the time period covered very few records were in fact seized, a total of 26 on my count. Given the nature, potential complexity and the size of the monies involved in this case it would not be unreasonable to expect that many more bank records would have been seized. This demonstrates deliberate and focused attention in the execution of the warrant.

225. For obvious reasons there is nothing about the manner in which the bank records were seized that affects or undermines their cogency. These are records that have been maintained and produced from their records by the banks themselves. The provenance and reliability of the bank records is not in question.

226. For equally obvious reasons the bank records are highly probative to the matters in issue in this case, that is whether Mr Paraka misappropriated monies belonging to the State as alleged, including that monies were paid to the accounts of PPL through the six named law firms.

227. Moreover, the gravity of the offences alleged in this case is very high. The charges are very serious alleging the ongoing misappropriation of many millions of kina of State monies over a period of years.

228. It is also highly relevant that any illegality could be immediately remedied by the issuance of summons by this Court on the bank to produce the very same documents now before it. But there would be no utility in that other than to delay the matter by the little time that it would take the bank to produce the documents already produced.

229. The legislative intent of the Search Act relevant for the common law discretion reflects the fundamental importance of the protections outlined in the Constitution under s 44 and 49 of the Constitution.

230. Section 57(3) provides the power to make such orders are “necessary or appropriate” to protect a right or freedom under the Constitution. Whilst the discretion under s 57(3) might be wider, the considerations outlined above when considering the discretion at common law are highly relevant. Whether or not different considerations might apply, or perhaps have greater significance, when considering the discretion under the Constitution will depend on the particular circumstances of any case. The Court may feel bound in some circumstances to exclude the evidence to give effect to the constitutional protections: Alex v Golu; The State v Popo; Evertius and Kundi.

231. As demonstrated above the breaches of the Constitution in this case cannot be regarded as deliberate, reckless or gross.

232. What is clear from a review of Alex v Golu; The State v Popo; Evertius and Kundi is that they were all “very bad” breaches of the rights under the Constitution. In Alex v Golu there was not the “slightest evidence to suggest that reasonable grounds existed” to have enabled a court to issue a warrant of search, and there was no suggestion that a crime was being committed in the house at the time. In Evertius and Kundi the court was satisfied that despite the evidence of the police officers concerned, there was no search warrant at all. In S v Popo the evidence was excluded where there was no search warrant and no circumstances justifying the search without one. For the reasons outlined above this case is very different.

233. Whilst the protections under the Constitution must be respected as a matter of principle in general terms, it is relevant that the searches did not concern either Mr Paraka’s premises or his property for the purposes of s 44 of the Constitution. The premises and property were those of the bank. Furthermore, for the most part the warrants were executed on bank accounts other than those of PPL or PKP Nominees Ltd for the purposes of s 49 of the Constitution.

234. In any event the breaches of the Constitutional rights in this case must be balanced against the public policy in favour of the admission of the evidence.

235. Whilst the authorities both at common law and under the Constitution make it clear that it is the public policy behind the requirements rather than the effect on a particular accused that is of paramount importance, it is also relevant to my consideration that Mr Paraka has failed to demonstrate any unfairness to him if the records were to be admitted.

236. In conclusion, having regard to all of the above matters, Mr Paraka has failed to satisfy me on the balance of probabilities that I should exclude the records from the trial in exercise of my common law discretion. Furthermore, he has failed to satisfy me that it is either necessary or appropriate to exclude the records pursuant to s 57(3) of the Constitution.

237. Permitting the evidence to be adduced at the trial would not involve any incompatibility with the functions of the court, or damage the repute and integrity of the judicial process.

238. Finally, Mr Paraka has failed to demonstrate that the records should be excluded on the basis that their prejudicial effect outweighs their probative value. As above they are highly probative. The fact that they may implicate Mr Paraka in the offences alleged does not render the records unfairly prejudicial against him but does demonstrate the high evidential value of the records.

239. It is in the interests of justice that the bank records produced under the warrants executed on BSP Limited and ANZ Bank Ltd be admitted on the trial proper.

52. We find that all considerations highlighted by the trial judge were relevant to the exercise of discretion and were given the weight warranted. Ultimately the appellant was not prejudiced by the admission into evidence of the bank records, notwithstanding that they had been obtained unlawfully. The trial judge did not commit any error of law in deciding to admit the bank records into evidence. Ground 1(m) is dismissed.

Ground 1(n) is a restatement of ground 1(m).

53. The trial judge made no error of law in the voir dire judgment. It follows that her Honour did not err by refusing to set it aside in the judgment on verdict, The State v Paraka (2023) N10273 We dismiss ground 1(n).

54. Ground 1(o) draws on most of the earlier sub-grounds 1(a) to 1(n) by arguing that the trial judge erred in law by finding the appellant guilty when none of the 65 cheques were paid to him personally, there was no evidence that he caused the payments to be made to any of the seven law firms, the cheques were paid to other entities without his direct involvement and the principals of the seven law firms and the directors of PKP Nominees Ltd were not found guilty of any underlying offences.

55. It was not necessary for it to be proven that any of the 65 cheques were paid personally to the appellant. The destination of the vast bulk of the proceeds of the 65 cheques was either the operating account of Paul Paraka Lawyers or PKP Nominees Ltd. The appellant was in a position to manage and control both those accounts.

56. It was not necessary for it to be proven by direct evidence that the appellant caused the payments to be made to the seven law firms or to PKP Nominees Ltd. The only reasonable inference to draw from the evidence was summarised by the trial judge at paragraph 400 of the judgment on verdict:

57. It was not necessary for there to be direct evidence that the appellant caused the payments to be made to the seven law firms. The circumstantial evidence was so compelling, it forced the conclusion that the appellant did cause the payments to be made to the law firms.

58. PKP Nominees Ltd to be convicted of any offences before the appellant could be convicted. The appellant was convicted on the basis of evidence brought against him in his trial.

59. The trial judge committed no errors of law in the manner contended for. We dismiss ground of appeal 1(o).

60. Grounds of appeal 2 to 4 deal with arguments grouped together under the sub-heading “apprehension of bias/denial of natural justice and fair trial” on the part of the trial judge. These grounds state:

The trial judge erred in law in presiding over the trial when she appeared to be biased and not objective and pre-conceived/prejudged of issues on the case.
Consequently, the trial judge erred in law in failing to dismiss the charges in the absence of direct and circumstantial evidence.
The trial judge erred in law and fact and presided over the trial matter where she had demonstrated a clear case of bias in a number of her earlier published rulings, culminating into the inevitable verdict against the accused on the 26 May 2023 in The State v Paul Paraka (2023) N10273 in the following cases:
- (a) Case No 1; The State v Paul Paraka (2021) N8807
- (b) Case No 2; The State v Paul Paraka (2021) N8938
- (c) Case No 3; The State v Paul Paraka (2022) N9568
- (d) Case No 4; The State v Paul Paraka (2023) N10273
- (e) Her Honour expressed a number of similar biased views in the following cases involving the accused:
  - (i) The State v Paul Paraka (2020) N8229.
  - (ii) The State v Paul Paraka (2020) N8608.
  - (iii) The State v Paul Paraka (2020) N8508.
  - (iv) The State v Paul Paraka (2021) N8807.
  - (v) The State v Paul Paraka (2021) N8938.
  - (vi) The State v Paul Paraka (2021) N9159.
  - (vii) The State v Paul Paraka (2022) N9568.
  - (viii) The State v Paul Paraka (2022) N9970

61. The appellant appears to be arguing that because the trial judge ruled against him in at least eight interlocutory decisions that preceded the judgment on verdict, her Honour was biased against him and not objective and had preconceived views and prejudged the issues for trial.

62. It is correct that the trial judge ruled against the propositions advanced by the appellant in eight separate interlocutory decisions. Some were before the actual start of the trial and some during the trial:

6 March 2020 – ruling on appellant’s objection to presentation of s 526 indictment – The State v Paraka (2020) N8229

22 September 2020 – ruling on appellant’s motion to disqualify trial judge – The State v Paraka (2020) N8508

23 October 2020 – ruling on motion to set aside indictment – The State v Paraka (2020) N8608

23 April 2021 – ruling on motion to permanently stay indictment – The State v Paraka (2021) N8807

13 July 2021 – ruling on motion to quash the amended indictment – The State v Paraka (2021) N8938

17 September 2021 – ruling on objection to evidence obtained under further five search warrants – The State v Paraka (2021) N9159

24 March 2022 – ruling on objection to admission into evidence of the bank records (the voir dire judgment) – The State v Paraka (2022) N9568

29 September 2022 – ruling on the State’s application to lead evidence of a witness by video-link – The State v Paraka (2022) N9970.

63. We have considered each of those rulings and can find nothing within any of them that manifests any bias or appearance of bias on the part of the trial judge against the appellant. It is illogical to assert that because a judge has ruled against a party in an interlocutory ruling and rules against the party in the final judgment, the judge must be biased against the party.

64. We have considered the general principles for determining whether bias or a reasonable apprehension of bias on the part of a judge has been proven:

The test to be satisfied is: would a reasonable and fair-minded person knowing all the relevant facts have a reasonable suspicion or apprehension that a fair hearing was not possible? (Boateng v The State [1990] PNGLR 342; Application by Herman Joseph Leahy (2006) SC981.)
The suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds (H J Leahy).
An objective, fair minded, lay observer is to be attributed with having some knowledge of the way in which the Courts and Judges work (Yama v Bank South Pacific Ltd (2008) SC921).
It must be borne in mind that the person being observed is a professional whose training, tradition and oath or affirmation require them to discard the irrelevant, the immaterial and the prejudicial (Johnson v Johnson [2000] HCA 48).
The party raising bias or a reasonable apprehension of bias as a ground on which to vitiate a judgment must identify the facts, matters and circumstances by reason of which it is said that the judge can be said to have decided the case other than on merit and then demonstrate a logical connection between those facts, matters and circumstances and the apprehended deviation from the course of deciding the proceeding on merit (Workers Mutual Insurance (PNG) Ltd (in Liq) v Sathasivam Sivakumaran (2013) N4987).
In cases where the allegation is that the apprehension of bias arises because a judge has presided over an earlier case or cases involving one or other of the parties, substantial grounds must be established.

65. In this case we are not satisfied that a reasonable and fair-minded person knowing all the relevant facts would have a reasonable suspicion or apprehension that a fair hearing was not conducted. The apprehension of bias, raised by the appellant, is based on suspicion. It is not based on reasonable grounds.

66. The appellant has identified the facts, matters and circumstances (he has pointed to a succession of eight interlocutory rulings that went against him) by reason of which he argues that the trial judge can be said to have decided the case other than on merit. However, he has failed to demonstrate any logical connection between those facts, matters and circumstances and the apprehended deviation from the course of deciding the case on merit.

67. We reject the arguments that the trial judge was biased against the appellant or that there is any reasonable apprehension of bias. The appellant was not denied a fair hearing or denied natural justice. We dismiss grounds of appeal 2, 3 and 4.

Grounds of appeal 5 to 9 deal with arguments grouped together under the sub-heading “jurisdiction”.

Section 5 of the Audit Act; The trial judge erred in law and without jurisdiction conducted a trial in this matter, when the Public Prosecutor unlawfully initiated a direct Ex-Officio Indictment on the complaint of the Police in breach of s 5 of the Audit Act.

(Ref: The State v Paul Paraka (2021) N8807).

Contempt of Court; The trial judge erred in law in conducting a Criminal trial in this matter when the allegations involve breaches of certain Orders of the National and Supreme Courts and such allegations are squarely in the contempt jurisdictions of the National and Supreme Courts under ss 37(2), 160(2) and 163(2) of the Constitution respectively.

(Ref: The State v Paul Paraka (2021) N8807).

Section 37(11) of the Constitution; The trial judge erred in law and without jurisdiction and unlawfully conducted a trial on this matter which involved allegations of legal bills/Court Order payments by the State, and since they in essence involved “determination of civil rights and obligations” of the parties, were matters in the civil jurisdiction of the Civil Courts and administrative tribunals under s 37(11) of the Constitution, and the Criminal Courts were devoid of any jurisdiction.

(Ref: The State v Paul Paraka (2021) N8807).

Section 37(11) of the Constitution; In the absence of the payment vouchers and cheque payments, to ascertain the facts of the alleged payments, it was necessary for the State to be bound by s 37(11) of the Constitution, and have the issues dealt with by the Auditor-General under ss 213 and 214 of the Constitution, Audit Act, the Public Finances (Management) Act, the Lawyers Act and the Commission of Inquiry under the Commissions of Inquiry Act respectively and the Civil Courts;
- (a) The Criminal Court’s jurisdiction was improperly and prematurely invoked in breach of s 37(11) of the Constitution.
- (b) Potape v The State (2015) SC1613; the trial judge erred in law in failing to apply the sound warning by the Supreme Court in Potape v The State (2015) SC1613 at [46] where the Court said the Criminal Courts should exercise proper judgment and should refrain from treating all cases as criminal.
- (c) Double jeopardy; the accused was unlawfully prosecuted in the secondary allegation when the Public Prosecutor made a deliberate judgement not to pursue the primary case after it was dismissed by the District Court on the 10th June 2020. The accused pleads double jeopardy under s 37(8) of the Constitution and pleads autrefois acquit under s 564 of the Criminal Code.

(Ref: The State v Paul Paraka (2021) N8807).

Abuse of process; the case should have been pursued against the recipients of the cheque payments, and the accused should have been joined in the same Indictment under s 7 of the Criminal Code. The trial judge erred in proceeding separately against the accused without any findings against the Principals of the Law Firms and PKP Nominees Ltd in breach of ss 37(1) & (3) of the Constitution and s 7 of the Criminal Code when: -
- (a) The principals of the 7 Law Firms and PKP Nominees Ltd were not charged; and
- (b) The Finance Secretary and Section 32 Financial Delegates of the DOF were not charged.

68. In ground 5 the appellant argues that the Public Prosecutor’s commencement of the trial by presentation of an indictment under s 526 of the Criminal Code was in breach of s 5 (power to prosecute) of the Audit Act, which states:

(1) Where the Auditor-General is satisfied that a person, to whom the provisions relating to audit contained in the Constitutional Laws and this Act apply, is guilty of misappropriation, misuse or fraud of public money, stores or property he shall refer the matter, together with a statement of the reasons for being so satisfied, to the Public Prosecutor.

(2) Where a matter has been referred to the Public Prosecutor under Subsection (1) and the Public Prosecutor has failed to proceed with the matter after 60 days, the Auditor-General may prosecute the person who in his opinion is guilty of misappropriation of public monies.

69. Section 5 imposes an obligation on the Auditor-General, if satisfied that a person to whom the provisions relating to audit contained in the Constitutional Laws and the Audit Act apply is guilty of misappropriation etc, to refer the matter to the Public Prosecutor. The appellant is not such a person and s 5 is therefore irrelevant to the facts of this case.

70. The appellant made a related point in his written submission: that a charge of misappropriation of public money “ought to be filed at the end of every fiscal year before the next annual budget”. This point has no legal foundation and is entirely without merit. We dismiss ground 5.

71. Ground 6 argues that the trial judge erred in law in conducting a criminal trial as the allegations against the appellant involved breaches of court orders and fell within the contempt jurisdiction of the National Court and the Supreme Court under ss 37(2), 160(2) and 163(2) of the Constitution.

72. We will assume for the sake of the argument that the premise on which this ground is based – that the allegations against the appellant involved breaches of court orders – is correct. If it is also correct that the allegations could have been prosecuted as contempt of court charges against the appellant, it does not follow that the allegations could not be prosecuted in the way that they in fact were: within the conventional criminal jurisdiction of the National Court. We dismiss ground 6.

73. In ground 7 the appellant argues that as the allegations against him involved breaches of court orders and disputed legal bills, they fell within the civil jurisdiction of the National Court under s 37(11) of the Constitution.

74. This argument, like the one in ground 6, is frivolous. Even presuming that the premise on which the argument is based is correct – that the allegations against the appellant could have been pursued in the National Court’s civil jurisdiction – it does not follow that the same or similar allegations could not be prosecuted as offences in the criminal jurisdiction of the National Court. We dismiss ground 7.

75. In ground 8, similar sorts of arguments to those pleaded in grounds 6 and 7 are raised. It is argued that the allegations against the appellant could have been pursued by the Auditor-General under ss 213 and 214 of the Constitution, the Audit Act and the Public Finances (Management) Act or even under the Lawyers Act or the Commissions of Inquiry Act.

76. These arguments, like those in grounds 6 and 7, are frivolous. Even presuming that the premise on which they are based – that the allegations against the appellant could have been pursued through the legislation cited – is correct, it does not follow that the same or similar allegations could not be prosecuted as offences in the criminal jurisdiction of the National Court. We dismiss ground 8.

77. Ground 9 argues that there was an abuse of process as the case should have been pursued against the recipients of the 65 cheques, while the appellant should have been joined in the same indictment under s 7 of the Criminal Code. While we appreciate that such a course of action could lawfully have been taken by the Public Prosecutor, it does not follow that it is an abuse of process for the Public Prosecutor to adopt the strategy that was in fact undertaken. The Public Prosecutor is an independent constitutional office-holder charged with the responsibility of discharging the prosecution function of the State under s 177(1)(a) of the Constitution.

78. The trial judge was not obliged to take the view that the prosecution of the appellant was wrong or unwarranted or premature. It was unnecessary for other people who, the evidence suggests (including the principals of the seven law firms and the officer(s) of the Department of Finance who facilitated payment of the 65 cheques) could have been charged, to be also charged and tried together with the appellant.

79. There was no error of law on the part of the trial judge not directing that others be indicted together with the appellant. We dismiss ground 9.

80. Grounds of appeal 10 to 12 deal with arguments grouped together under the sub-heading “Sweep Team/Unlawful criminal investigation”.

The trial judge erred in law and fact in failing to rule that the purported criminal investigations into the Bank records of the accused and other Law Firms commenced unlawfully in May 2013:
- (a) without an official and lawful complaint;
- (b) without a lawful search warrant under s 6 of the Search Act and ss 44 and 49 of the Constitution; and
- (c) such did not give rise to a criminal offence capable of being investigated by Police in breach of ss 155(6), 197(1) and 37(2) of the Constitution.
The trial judge erred in law in failing to rule that the investigations were unlawfully conducted and the subsequent investigations at the Department of Finance and the Solicitor-General’s Office were unlawful, and the whole investigation, criminal charges and the trial were in breach of s 197(1) & (2) of the Constitution, and the trial is a nullity.
The trial judge erred in law and fact in failing to find in respect of the Government established Sweep Team in that:-
- (a) It comprised of the Arresting Officer, Senior Constable Pius Peng, Chief Inspector Timothy Gitua, Auditor, Ekip Kop under the direct command and control of Chairman, Sam Koim in breach of s 198 of the Constitution; and
- (b) They were unlawfully appointed to perform Police functions independently in breach of ss 197(1), 198 and 199 of the Constitution in the absence of an Act of Parliament.
- (c) Chairman, Sam Koim directly involved in the investigations into the Solicitor General Devette’s complaint of the 14 March 2012, and compromised the whole process by paying the Sweep Team members allowances between K2,000.00 - K5,000.00 each per month, and in breach of ss 197(1) and (2) of the Constitution:
  - (i) In that the objectivity, impartiality and independence of the Arresting Officer and the Police were severely compromised in breach of s 197(1) & (2) of the Constitution.
  - (ii) The Police and Arresting Officer were subject to direction and control by Chairman Sam Koim in breach of s 197(2) of the Constitution.
  - (iii) The Court therefore erred in law in failing rule that the purported criminal investigation was in breach of ss. 197(1) & (2), 198 & 199 of the Constitution, and therefore invalid.
- (d) All the members ceased to exist as of the date of the disbandment of the Sweep Team on the 18th June, 2014.
- (e) Consequently, the Criminal charges by the Arresting Officer, Mr Pius Peng on the 25^th July 2014 was unlawful.
- (f) The purported Auditor, Ekip Kop’s Audit Report dated 9th October 2014 was also invalid in breach of ss 3(6), 4 and 7 of the Audit Act, and ss 213(3) and 214 of the Constitution.

(Ref: The State v Paul Paraka (2021) N8807).

81. In ground 10 the appellant argues that the purported criminal investigation was unlawfully commenced in May 2013 as there was no official or lawful complaint, no lawful search warrant and no criminal offence capable of being investigated.

82. We reject these submissions. The Police are authorised to investigate any suspected criminal conduct and can do so on their own initiative. It is not necessary that there be a complaint.

83. There is no requirement that an “official” or “lawful” complaint be made. The fact that a search warrant might have been unlawfully issued has no effect on the lawfulness of a criminal investigation.

84. It is fallacious to assert that the investigation that commenced in May 2013 “did not give rise to a criminal offence capable of being investigated by the Police”. We fail to understand the argument made under ground 10(c).

We dismiss ground of appeal 10.

85. Ground 11 is based on ground 10, in that it is argued that the criminal investigation against the appellant was unlawfully conducted from the start, and that this meant everything that happened thereafter was unlawful.

86. We have rejected the argument in ground 10 that the criminal investigation against the appellant was unlawful from the start. It follows that the argument that all subsequent investigations were unlawful and that the trial was a nullity is rejected. We dismiss ground of appeal 11.

87. In ground 12 the appellant challenges the legality of Task Force Sweep and argues that the criminal charges brought against him on 25 July 2014 by the arresting officer, Pius Peng, were unlawful.

88. The question of the legality of Task Force Sweep has been addressed in a number of judgments of the National Court, given in several separate civil proceedings by different Judges. For example, Gavara-Nanu J in Golu v National Executive Council (2011) N4425, Makail J in Koim v The State (2016) N6568 and Dingake J in Paraka v Bidar (2018) N7443. In none of those decisions did the National Court rule that members of Task Force Sweep were unlawfully appointed or that Task Force Sweep was unlawful or that criminal investigations initiated under its umbrella were unlawful.

89. We endorse the comments of the trial judge in her ruling of 23 April 2021 on a motion by the appellant for a permanent stay of the indictment (The State v Paraka (2021) N8807) at paragraph 111:

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 anti-corruption 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.

90. The evidence before the National Court shows that while the arresting officer, Detective Constable Pius Peng, was a member of Task Force Sweep, he remained at all times a member of the Police Force. The police brief was not unlawfully compiled. Detective Constable Peng had by virtue of s 140 of the Police Act all the powers of a constable under the underlying law to investigate and detect crime and bring offenders to justice. We endorse the comments of the trial judge that any police officer can bring criminal charges subject to the direction and control of the Commissioner of Police (SC Ref Nos 2, 3 & 5 of 2014, References by National Court & Principal Legal Adviser re Powers, Functions, Duties & Responsibilities of the Commissioner of Police [2014] 2 PNGLR 350). The charges laid against the appellant were not unlawful.

91. The investigation was not in breach of ss 197, 198 or 199 of the Constitution. We dismiss ground of appeal 12.

(B) EX OFFICIO INDICTMENT

92. There are six grounds of appeal, Nos 13-18, in this part of the supplementary notice of appeal.

(I) Form of Indictment; Defective

The trial judge erred in law in failing to quash/ dismiss the Indictment in that the Indictment did not expressly charge the accused under the specific number of the offence, being s 383A of the Criminal Code with the offence of misappropriation in breach of s 528(1) & (6) of the Criminal Code and s 37(2) of the Constitution (number of offence was not expressly stated).

The trial judge erred in law in allowing the 5 counts in the Indictment where the allegations involved 65 different cheque payments/transactions to PKP Nominees Ltd and 7 different law firms and these cheques/transactions were not expressly set out in the Indictment to avoid prejudice and unfairness to the accused, and for evidence to be directed for the proof of these payments.

Instead they were rolled up and lumped up in a single composite Indictment creating inherent confusions and prejudices to the accused in breach of s 531(1) of the Criminal Code.

(II) Indictment under s 526(1) of the Criminal Code

The trial judge erred in law in accepting the Indictment which was unlawfully initiated by the Public Prosecutor prematurely on the 25th April, 2019 in breach of the pre-conditions under s 526(1) of the Criminal Code in proceedings The State v Paul Paraka (2020) N8229 when:

(a) There were no Committal proceedings/hearing on the Police evidence in the Police Hand-Up Brief under ss. 94-100 of the District Courts Act.

(b) Where there were no formal “refusal to commit” by the District Court under s 100 of the District Courts Act.

(III) Rule Against Duplicity; Section 531 of the Criminal Code

The trial judge erred in law in allowing the Indictment to be presented for trial, when the Indictment contained a rolled up composite charge involving several different offences, involving 65 different transactions/cheque payments to PKP Nominees Ltd and 7 different Law Firms when:

(a) They were in breach of the rules against duplicity under s. 531(1) of the Criminal Code Act.

(b) They were in breach of s 531(2) of the Criminal Code, in that the specific dates, and nature of the payments/allegations/statements in respect of each of the 65 cheques/transactions were not set out under s 531(2) of the Criminal Code Act.

(c) Consequently, the Court could not direct elections under s 531(3) of the Criminal Code Act.

(d) As a consequence of the non-compliance under s 531(2) of the Criminal Code, the accused has been prejudiced during the trial, and his constitutional rights to natural justice and a fair hearing under ss 37(3) and 59 of the Constitution have been breached.

Ref: 1. The State v Paul Paraka (2021) N8807; 2. The State v Paul Paraka (2021) N8938.

(IV) Quashing of Indictment/Amendment to Indictment

The trial judge erred in law in ordering amendment to the Indictment under s 558(2)(b) of the Criminal Code Act on the 23^rd April 2021 in proceedings The State v Paul Paraka (2021) N8807 when:

(a) The Prosecution and the accused did not ask for an amendment.

(b) The trial judge unlawfully relied on the State’s Pre-trial Review Statement (PTR), which was not properly in evidence at the time of the hearing, and subsequently served belatedly on the accused, three (3) days after the Court’s decision on the 26th April 2021.

(c) The trial judge erred in law and fact in improperly relying on the State’s PTR Statement at paragraphs [3] to [6] of the judgment and directed the amendment on its own volition.

(d) The trial judge had misapplied the common aw principles on duplicity, without reference to s 531 of the Criminal Code and the Underlying Law Act 2000 and unfairly denied the accused’s motion to quash.

(e) Both the original Indictment and the amended Indictment fails to set out each of the cheques allegedly paid out to the recipients of the cheques including the cheque numbers and dates and amount, and the Indictment fails to plead expressly how the accused caused the payments to these recipients.

(f) Consequently, the accused has been denied of his natural justice rights and a fair hearing under ss 37(3) and 59 of the Constitution, and seeks his full protection and enforcement, and have the Indictment quashed under s 558 of the Criminal Code and s 57(3) of the Constitution.

Ref: 1. The State v Paul Paraka (2021) N8807; 2. The State v Paul Paraka (2021) N8938.

93. Ground 13 argues that the indictment did not specify the section number of the Criminal Code – 383A – under which the appellant was charged and therefore did not comply with ss 528(1) and (6) of the Criminal Code.

94. Sections 528(1) and (6) (form of indictment) state:

(1) An indictment shall be intituled with the name of the court in which it is presented, and must, subject to the succeeding provisions of this Division set forth the offence with which the accused person is charged—

(a) in such a manner; and

(b) with such particulars as to—

(i) the alleged time and place of committing the offence; and

(ii) the person (if any) alleged to be aggrieved; and

(iii) the property (if any) in question,

as is necessary to inform the accused person of the nature of the charge.

...

(6) It is sufficient to describe an offence in the words of this Code or the other written law defining it.

95. We agree with the trial judge who, at paragraph 142 of the judgment on verdict, pointed out that there was no requirement at the time the indictment was presented for the section number of the Criminal Code to be expressly stated in the indictment. That requirement was introduced by the Criminal Practice Rules 2022 (see form 13, general form of indictment), which came into force on 1 May 2022, which was after the presentation of the indictment in the present case.

96. We consider that the manner in which the indictment was drafted and the particulars it contained were sufficient to inform the appellant of the nature of the charges. There was no breach of the requirements of s 528 of the Criminal Code. We dismiss ground 13.

97. Grounds 14 and 15 argue that the trial judge erred in law in allowing the indictment containing five counts to be presented based on allegations involving 65 cheque payments without details of the cheques and transactions being expressly set out in the indictment. It is argued that the appellant was prejudiced in his defence and that he was tried unfairly by reason of that error.

98. Similar arguments were raised at the trial and dealt with properly and fairly by the trial judge at paragraph 145 of the judgment on verdict:

145. The accused’s submission that he did not know the State’s case is without merit. The accused has been in possession of the police brief since 19 May 2017. The State intention to proceed against the accused for misappropriation has been clear since it first informed the accused it intended to present the s 526 indictment against him in the National Court. The accused has been in possession of the State’s pre-trial review statement since April 2021. The allegation in this case is essentially a simple one, namely that the accused caused monies to which he was not entitled to be paid to accounts controlled by him, including through the accounts of various other firms in some cases. It is evident from his cross-examination of S/Sgt Peng that the accused has been aware that the allegation concerns 65 or so cheques since he was interviewed by police. The details of those cheque payments, if not the cheques themselves, were referred to in Mr Pop’s report, which was served as part of the hand up brief. His contention that 65 separate indictments should have been laid has been previously rejected: The State v Paul Paraka (2021) N8938 at [40]. There can be no doubt from the conduct of the trial that the accused well understood the nature of the allegations and the evidence to be led. If the accused was under any doubt about those matters he was at liberty to ask for further particulars, as I reminded him in The State v Paul Paraka (2020) N8229 at [103].

99. The manner in which the indictment was drafted and the alleged lack of detail it provided neither prejudiced the appellant in his defence nor resulted in him being tried unfairly. The indictment contained the elements of the offence under s 383A(1)(a) of the Criminal Code, which is all that it was required to contain. It was drafted in accordance with the form then required by the Criminal Practice Rules 1987. It was not confusing. We dismiss grounds 14 and 15.

100. Ground 16 alleges that the trial judge erred in law by accepting the indictment, which had been “unlawfully initiated” prematurely by the Public Prosecutor in breach of the preconditions in s 526(1) of the Criminal Code, which states:

Where a court of summary jurisdiction has refused to commit a person for trial for an indictable offence, the Public Prosecutor may—

(a) consider the evidence contained in the depositions taken before the court (and any other relevant evidence); and

(b) reduce into writing in an indictment a charge of any offence that the evidence appears to warrant.

101. In Application by Herman Joseph Leahy (2006) SC855 the Supreme Court described the preconditions to the presentation of an indictment under s 526 as being:

a court of summary jurisdiction has refused to commit a person for trial on an indictable offence;
the Public Prosecutor has considered the evidence contained in the depositions taken before the court (and any other relevant evidence);
the Public Prosecutor has reduced into writing in an indictment a charge of any offence that the evidence appears to warrant.

102. The appellant argues that in his case there was no separate and distinct committal hearing for the large amount of K162 million and he was not charged by the Police with misappropriation and there were no committal proceedings on the merits of the evidence in the police evidence in the hand-up brief under ss 94-100 of the District Courts Act and there was no formal refusal to commit, so the first pre-condition was not met.

103. The trial judge in her ruling of 6 March 2020 on the appellant’s objection to presentation of the indictment outlined the protracted District Court proceedings involving the appellant (The State v Paraka (2020) N8229). The proceedings commenced in July 2014 and were not finalised until 10 December 2018 when the presiding magistrate struck out the charges as an abuse of process and ordered that the appellant be discharged.

104. We reject the appellant’s contention that the District Court proceedings were not committal proceedings. However, even if we upheld that contention, we would still find that the presiding magistrate, by the order to strike out the charges as an abuse of process, refused to commit the appellant to trial. In Leahy the Supreme Court held that it was the substance of the District Court's decision that matters. Even if the words “refuse to commit” are not used, if the substance of the decision is a refusal to commit, that is sufficient. The first precondition to presentation of an indictment under s 526 was met.

105. We are satisfied that the two other preconditions were met. We reject the argument that there was no separate and distinct committal hearing for the large amount of K162 million. This is what the appellant refers to his submissions as the “secondary case” against him (as distinct from the “primary case”, being the charges the police brought against him regarding alleged misuse of public funds in 2012 and 2013). There was indeed such a separate and distinct committal hearing.

106. The Public Prosecutor considered the evidence contained in the depositions taken before the District Court, then reduced into writing in an indictment the charges of offences that the evidence appeared to warrant. The fact that the appellant was not charged by the Police with misappropriation is irrelevant. It was the prerogative of the Public Prosecutor to decide what charge or charges to include in the indictment. We find no error of law in the trial judge’s acceptance of the indictment. We dismiss ground 16.

107. In ground 17, the appellant argues that the trial judge erred by allowing a single indictment to contain rolled up charges contrary to the rule against duplicity in s 531 of the Criminal Code. Ground 17 is a restatement of ground of appeal 1(a). We determine ground 17 the same way ground 1(a) was determined.

108. We consider that her Honour determined the argument based on s 531 and the alleged breach of the rule against duplicity appropriately at paragraphs 143 and 144 of the judgment on verdict:

143. ... The common law rule against duplicity is reflected in s 531(1) of the Criminal Code and its operation has been well established in this jurisdiction in accordance with those principles for many years. Furthermore, it is a rule of general application only, subject to the overriding consideration that the rule will not apply if joining more than one allegation in one charge is not unfair or prejudicial to the accused: Luma v State (2022) SC2249 at [12] and [13].

144. In this case, the allegations were of different acts of a similar nature, namely the dishonest application of monies belonging to the State for which there was no entitlement. 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. It was not unfair or prejudicial to the accused for the allegations to be reduced to one charge. There was no error in the State’s original indictment. The amendment of the indictment was only directed by me in response to the accused’s contention that he was entitled to be charged on an annual basis. He was not so entitled but I ordered the amendment pursuant to s 588(2)(b) of the Criminal Code to facilitate the administration of the trial ... Moreover, the accused remains unable to demonstrate the basis upon which he is prejudiced in his defence at trial by the indictment.

109. We reiterate that the appellant cannot reasonably be regarded as being prejudiced in his defence or tried unfairly by the manner in which the indictment was drafted. We dismiss ground 17.

110. In ground 18 the appellant argues that the trial judge erred in law by ordering on 23 April 2021 that the indictment be amended, so that the originally-presented indictment, which contained one charge, was separated into five charges, with each of the years 2007, 2008, 2009, 2010 and 2011 the subject of a separate charge (The State v Paraka (2021) N8807). He argues that neither he nor the prosecution asked for an amendment and that the trial judge unlawfully relied on the State’s pre-trial review statement in ordering the amendment. He maintains that the amended indictment contains insufficient details of the allegations and that he has been denied a fair hearing and natural justice contrary to ss 37(3) and 59 of the Constitution.

111. The appellant also argues that the trial judge erred in law and fact by improperly relying on the State’s pre-trial review statement, which was not served on him until three days after the ruling of 23 April 2021. Further, that the facts on arraignment were at variance with the indictment.

112. We find no impropriety on the part of the trial judge in the manner in which the State’s pre-trial review statement was dealt with. The State conceded at the hearing of the appeal that the pre-trial review statement was served late, contrary to the trial judge’s directions. However, that was not a material procedural irregularity and the appellant was not prejudiced in his defence of the charges due to the late service of the pre-trial review statement.

113. We reject the contention that the facts on arraignment were not reflected in the indictment.

114. We are satisfied that the trial judge acted within jurisdiction in ordering amendment of the indictment under s 558(2)(b) of the Criminal Code.

115. Section 558 states:

(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.

116. It does not matter if neither party asked for an amendment. (However, it appears that the appellant did ask for the amendment.) Her Honour ordered that the indictment be amended in such manner as the court “thinks just”. It is clear that her Honour was of the view – which we agree with – that there was nothing wrong with the original indictment. But she nevertheless ordered that it be amended due to the appellant’s persistent claim that he was prejudiced in his defence by having the allegations framed as a single charge.

117. It is fallacious to assert that the trial judge unlawfully relied on the State’s pre-trial review statement in deciding to order amendment of the indictment. A pre-trial review statement is neither a piece of evidence nor a legal instrument that restricts the discretion available to a judge under s 558 of the Criminal Code to order amendment of an indictment.

118. We reiterate that we see neither prejudice nor unfairness to the appellant due to the drafting of the indictment. We dismiss ground 18.

(C) SEARCH WARRANTS

119. There are three grounds of appeal, Nos 19-21, in this part of the supplementary notice of appeal.

(I) Unlawfully obtained Bank Statements/Findings

The trial judge erred in law and fact in failing to rule that the purported Bank Statements and documents subject of the voir dire trial were not the subject of the Bank documents obtained by Court Orders of the 1^st August, 2013 which covered alleged payments for 2012 in the primary case initiated by Chief Inspector Timothy Gitua on the 22 October 2013 in the District Court.

The trial judge erred in law and fact in failing to find that there was no separate Search Warrant for the secondary case headed by Senior Constable Pius Peng alleged payments between 2007 - 2011, the basis of the charges on the 25th July, 2014 in the District Court and the subsequent Indictment in the National Court.

The trial judge erred in fact and in law in admitting the Bank documents including all the Law Firms/entitles Bank Statements in the exercise of the Court’s Common Law discretion and her discretion under s 57(3) of the Constitution after declaring the search warrants and seized Bank documents unlawful in proceedings The State v Paul Paraka (2022) N9568 when:

(a) They were in breach of s 6 of the Search Act and ss 44 and 49 of the Constitution and ss 3 & 4(3), Parts III and IV of the Underlying Law Act 2000;

(b) The Court erred in failing to overrule and set-aside the Bank documents in the above judgment of the Court dated 24th March 2022 in the subsequent proceedings The State v Paul Paraka (2023) N10273 for breach of ss 3 & 4(3) and Parts III and IV of the underlying Law Act 2000, s 6 of the Search Act and ss. 11, 44, 49 and 57(3) of the Constitution.

(c) The trial judge also erred in law in failing to exercise her discretion appropriately and reject the bank documents under ss 11 and 57(3) of the Constitution.

(d) The trial judge erred in law and fact in improperly relying exclusively on the Bank Statements and transaction reports of the Law Firms and PKP Nominees Ltd that were not properly in evidence at the trial and made all the findings based on Table 1 annexed at [290] to [415] of the judgment.

(e) The trial Judge erred in law in adopting and applying the Common law of Australia in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 and Queen v Ireland [1970] HCA 21; (1970) 126 CLR 321 in breach of ss 3 & 4(3) and Parts III and IV of the Underlying Law Act 2000.

(f) The trial Judge after identifying as new Common Law in Australia and went to some length to quote an extract from Bunning v Cross (1978) case (per Stephen and Aitken JJ at [212] of the judgment in The State v Paul Paraka (2022) N9568 and adopted as conceived in Bunning case, it is what is termed as balancing of two competing requirements of public policy in bringing the wrongdoer to conviction and the undesirable effect for giving curial approval or encouragement to unlawful actions of the law enforcement Officers, hence the Common Law discretion, Her Honour then erred in Law in failing to formulate a new Underlying Law consistent with Part III and IV of the Underlying Law Act 2000.

(g) The accused was denied his right to natural justice and a fair hearing under ss 37(3) and 59 of the Constitution, and he claims his right to the full protection of the law and seeks enforcement and protection under s 57(3), (4) & (5) of the Constitution.

120. In ground 19 the appellant relies on the objection to the admission of bank records that he made at the voir dire hearing, which concluded on 24 March 2022 when the trial judge ruled that bank records produced under warrants executed on BSP Ltd and ANZ Bank Ltd were admissible in the trial proper. He maintains that the bank documents that were admitted were not lawfully obtained under the orders of the National Court (constituted by Salika DCJ, as he then was) of 1 August 2013, which issued ten search warrants. He argues that those warrants only authorised production of bank records for the “primary case” (alleged suspicious payments made to law firms in 2012) that was investigated by Chief Inspector Gitua and that they did not authorise production of bank records for the “secondary case” (alleged suspicious payments made to law firms from 2007 to 2011, that was investigated by Detective Constable Peng, which became the subject of the five charges of which the appellant was convicted). He argues that the trial judge erred in law and fact by failing to rule that the bank documents the subject of the voir dire hearing were not documents obtained under the warrants issued on 1 August 2013.

121. We have carefully considered the trial judge’s ruling of 24 March 2022 (The State v Paraka (2022) N9568). We agree with her Honour’s finding that the terms of the search warrants issued by the National Court on 1 August 2013 covered bank records in respect of the period from 2007 to 2011 as well as records in respect of 2012, and that the records for 2007 to 2011 were properly obtained under those warrants.

122. We note that the appellant’s submissions are based on his contention that there were two separate police investigations to which he was subject: one relating to suspect payments from the Department of Finance in 2012 which he calls the primary case; the other relating to suspect payments from the Department of Finance in respect of the period from 2007 to 2011, which he calls the secondary case.

123. We reject that contention. We agree with the trial judge’s finding (N9568 at paragraph 161) that there was one central investigation regarding the suspected misappropriation of monies belonging to the State through various law firms. The fact that different police officers had primary responsibility for investigating different parts of that matter for administrative purposes is beside the point.

124. No error of law or fact was made by the trial judge failing to rule that the bank records subject to the voir dire were not the subject of the bank documents obtained under the orders of the National Court of 1 August 2013. We dismiss ground 19.

125. In ground 20 the appellant argues that the trial judge erred in law and fact by failing to find that there was no separate search warrant for the “secondary case” for the alleged payments from 2007 to 2011 that became the subject of the indictment presented at the trial.

126. We reject that argument. The trial judge was correct in concluding that that there was no “secondary case” and that there was no need for a separate search warrant in respect of the charges brought before the District Court on 25 July 2014. We dismiss ground 20.

127. Ground 21 is a restatement of arguments already made and determined in grounds 1(m) and (n). There was no error of fact or law by the trial judge in the voir dire judgment of 24 March 2022 (The State v Paraka (2022) N9568) and the decision to admit the bank documents in the exercise of the underlying law discretion and the discretion in s 57(3) of the Constitution. We dismiss ground 21.

(D) TRIAL

128. There are 13 grounds, Nos 22-34, in this part of the supplementary notice of appeal.

(I) Circumstantial Evidence

The trial judge erred in law and fact in misapplying the law on circumstantial evidence to re-create evidence that were lacking, in the form of the payment vouchers for the alleged payments and cheques that were non-existent.
The trial judge erred in law in failing to rule that in the absence of all the relevant material witnesses from:
- (i) the Finance Department; including the Secretary for Finance and all the Procurement Officers; and
- (ii) Attorney-General’s Office; Attorney-General and other Senior Officers; and
- (iii) Police Commissioner;
- (iv) Auditor-General;
- (v) the Sweep Team Office; Chairman Sam Koim;
- (vi) all the Principals of Law Firms and PKP Nominees Ltd

that there was reasonable doubt in the case, and it was difficult to establish all the elements of the offence of misappropriation beyond reasonable doubt.

Her Honour erred in law and fact in relying on the uncorroborated evidence from the 3 witnesses from the Solicitor General’s Office which were too remote and it was not possible to make any other rational inferences without any evidence from the Attorney-General and Finance Secretary.
There were no direct or circumstantial evidence for rational inference as to the guilt of the accused, and the trial Court erred in law in failing to find the accused not guilty.

(II) State Witnesses

The trial judge erred in law, in unlawfully conducting the trial with no direct evidence on the elements of the offence of misappropriation under s 383A of the Criminal Code in that:

(a) The decision of 26^th May 2023, relied on the unreliable and uncorroborated evidence of 11 State witnesses, who failed to produce any direct or circumstantial evidence including cheques purportedly paid and payment vouchers, to directly implicate the accused.

(b) The trial Court improperly relied on the Bank Statements of the accused Law Firm (PPL) and PKP Nominees Ltd, and 7 other Law Firms, and improperly made adverse findings against the accused when:

(i) evidence of the money trail was not before the Court in evidence to be challenged by the accused in cross- examination.

(ii) The Court erred in accepting the fabricated and uncorroborated evidence of Christine Gimot and Miriam Kias, Neville Devete, Ekip Kop and Arresting Officer, Senior Constable Pius Peng, which were unreliable, hearsay and false in many respects.

No direct evidence; The trial judge erred in law and fact in failing to find that in the absence of the payment vouchers and DOF cheques, there were no direct evidence of the alleged payments to the accused directly or through the respective 7 Law Firms and PKP Nominees Ltd between 2007 - 2011.

No evidence from material witnesses; The trial judge erred in law and fact in failing to find that in the absence of evidence from all the relevant material witnesses from:

(a) the Finance Department (Finance Secretary, Deputy Secretaries, IT Manager and all the Section 32 Officers, and authorized Procurement Officers and other relevant officers); and

(b) Attorney-General’s Office (former and current Attorney-General and Secretary for Justice); and

there was no other circumstantial evidence from any credible witnesses to prove what the payments were for these Law Firms, and PKP Nominees Ltd, and therefore it was difficult to make any rational inference that the payments were for the accused.

Accused caused the payments. The trial judge erred in law and fact in failing to make any specific findings in respect of every alleged 65 DOF cheques (by cheque numbers, amount and date of payments) what the payments were for and determine how the accused caused these payments.
Evidence from State witnesses. The trial judge failed to rule that there was no evidence whether either direct or by inference at the trial from any of the 11 witnesses (8 from the main trial and 3 from voir dire) of the alleged payments of these cheques were for the accused.
Her Honour erred in law and fact in failing to rule that there was no contrary evidence to disturb the presumption of regularity of each and every individual 65 cheque payments by the DOF.
Consequently, the trial judge failed to find that the State had failed to prove all the requisite elements of the offence of misappropriation under s 383A of the Criminal Code Act in respect of each of the 5 counts and erred in law in failing to dismiss all the 5 counts of the Indictment.
Reasonable doubt; The trial judge erred in law in failing to entertain a reasonable doubt in this case, after making a number of findings demonstrating clear doubt in this case viz [398] and [399] of the Judgment.
Outside trial evidence: Table 1; The trial judge erred in law in relying on the Bank Transactions in Table 1 annexed in the Judgment which were not properly in evidence at the trial to make several findings against the accused against all the relevant elements of the offence of misappropriation at [290] to [415] of the Judgment. ... [six pages from the supplementary notice of appeal are omitted here]

129. As to ground 22, we reject the contention that the trial judge misapplied the law on circumstantial evidence. Her Honour correctly set out the law at paragraph 240 of the judgment on verdict:

The State’s case against the accused is substantially circumstantial. The principles governing such a case are well established. In a case resting wholly or substantially upon circumstantial evidence, an accused cannot be found guilty unless the prosecution has excluded all rational hypotheses consistent with innocence; that is the guilt of the accused must not only be a rational inference, but the only rational inference in all of the circumstances: Paulus Pawa v The State [1981] PNGLR 498 (approving The State v Tom Morris [1981] PNGLR 493, adopting Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108 quoting Peacock v the King [1911] HCA 66; (1911) 13 CLR 619; see more recently Maladina v The State (2016) SC1495 and others.

130. Her Honour did not “recreate evidence” but made findings of fact and concluded that the proven facts led only to the conclusion that the appellant was guilty of the offences with which he had been charged. There was no error in that process of reasoning. We dismiss ground 22.

131. In ground 23, it is argued that the absence of material witnesses meant that there was a reasonable doubt as to the guilt of the appellant, and that the trial judge erred by not so ruling. This ground is a repeat of ground 1(g). We reiterate that the trial judge did not err by failing to find that the State had failed to call all relevant witnesses. Her Honour ultimately concluded that the obligation of the State to prove its case beyond reasonable doubt was discharged. We dismiss ground 23.

132. Ground 24 argues that the trial judge erred in law and fact by relying on evidence from three witnesses from the Office of Solicitor-General, which was too remote and uncorroborated. We disagree. Their evidence was significant and reliable. It shed light on how the Department of Finance is responsible for payment of judgment debts against the State (after being certified by the Solicitor-General) as distinct from payment of legal bills, which are the responsibility of the Office of Solicitor-General. The trial judge relevantly found at paragraph 285 of the judgment on verdict:

I find on the evidence of Mr Devete that no matters were briefed out by the Attorney-General, through the OSG [Office of Solicitor-General], to PPL [Paul Paraka Lawyers] during the period 2007 to 2011, and that no legal bills were paid by DJAG [Department of Justice and Attorney-General] to PPL during that period.

133. Further, at paragraphs 288 and 289 of the judgment on verdict the trial judge found:

On the evidence of Mr Devete, Ms Kias and Ms Gimots, no matters were briefed out, and no payments for legal fees were made, by the Attorney-General through the OSG, to PKP Nominees during the period 2007 to 2011.

On the evidence of Mr Devete, Ms Kias and Ms Gimots no matters were briefed out and no payments for legal fees were made by the Attorney-General through the OSG to Sino & Co Lawyers, Jack Kilipi Lawyers, Harvey Nii Lawyers, Sam Bonner Lawyers, Kipoi Lawyers, Korowi Lawyers or Yapao Lawyers during the relevant period.

134. The trial judge was entitled to rely on the evidence of Mr Devete, Ms Kias and Ms Gimots when making the finding of fact that nothing was payable by the State to Paul Paraka Lawyers in respect of the period from 2007 to 2011. We dismiss ground 24.

135. Ground 25 is a general criticism of the judgment on verdict. It is not a proper ground of appeal and it is dismissed.

136. Grounds 26 to 32 and ground 34 are largely a re-framing of grounds 1(a) to 1(l).

137. Grounds 26 and 27 argue that there was no direct evidence of the elements of the offence and no direct evidence of any payments being made to the appellant directly or through any of the seven law firms or PKP Nominees Ltd. These arguments were raised in grounds of appeal 1(b) to 1(e). We dismissed grounds 1(b) to 1(e) and we rely on the reasons given in our determination of those grounds to dismiss grounds 26 and 27.

138. Ground 28 argues that there was no evidence from all relevant material witnesses including the then Secretary for Finance and the then Attorney-General. This argument was raised in ground of appeal 1(g). We dismissed ground 1(g) and we rely on the reasons given in our determination of that ground to dismiss ground 28.

139. Ground 29 argues that the trial judge erred by failing to make specific findings in respect of each of the alleged 65 Department of Finance cheques as to what the payment was for and how the appellant caused the payment. This argument was raised in ground of appeal 1(f). We dismissed ground 1(f) and we rely on the reasons given in our determination of that ground to dismiss ground 29.

140. Ground 30 argues that the trial judge erred by failing to rule that there was no evidence from any of the 11 State witnesses that any of the alleged 65 Department of Finance cheque payments were for the appellant. This argument was raised in grounds of appeal 1(h) and 1(i). We dismissed those grounds and we rely on the reasons given in our determination of those grounds to dismiss ground 30.

141. Grounds 31 and 32 argue that the trial judge erred by failing to rule that there was no contrary evidence to disturb the presumption of regularity of each of the alleged 65 Department of Finance cheque payments and therefore failing to find the appellant not guilty of the five counts on the indictment. These arguments were raised in grounds of appeal 1(j) and 1(k). We dismissed those grounds and we rely on the reasons given in our determination of those grounds to dismiss grounds 31 and 32.

142. Ground 33 raises an argument not previously raised, viz that the trial judge erred in failing to entertain a reasonable doubt after making a number of findings demonstrating clear doubt. The appellant bases this argument on paragraphs 398 and 399 of the judgment on verdict, where the trial judge stated:

398. Whilst I appreciate that it might have been difficult for the police to identify the officers in the accounts section of DoF at the relevant time, the fact that the Secretary had left DoF did not mean that the police or the prosecution should not have spoken to him, particularly as he was the only person with authority to approve the payments. I would have expected police to speak to him in the circumstances but it does not appear to me that this was done in breach of their duty but rather a lack of rigour or experience. Critically, for the reasons outlined above the fact he was not called does not raise any doubt in my mind.

399. It is the case that the investigation could have been more thorough and coordinated. There were parts of the State’s case that lacked detail or should have been clarified. But I am satisfied that the proven facts lead inevitably to only one conclusion in respect of each of the charges contained in the indictment.

143. We regard those statements as mild and constructive criticism by the trial judge of the completeness of the police investigation. They do not reflect any reasonable doubt in the assessment of the trial judge as whether the evidence supported a guilty verdict. The trial judge was not bound by her criticism of the police investigation to entertain any reasonable doubt as to the appellant’s guilt. Her Honour in fact emphasised that her criticism of the police investigation did not raise any doubt in her mind as to whether the proven facts led only to the conclusion that each of the charges contained in the indictment was proven according to the criminal standard of proof: beyond reasonable doubt. No error of law of the type alleged by the appellant was committed by the trial judge. We dismiss ground 33.

144. Ground 34 argues that the trial judge erred in law by relying on the bank transactions in table 1 annexed to the judgment on verdict, which is argued to be not properly in evidence at the trial. This argument was raised in ground of appeal 1(l). We dismissed ground 1(l) and we rely on the reasons given in our determination of that ground to dismiss ground 34.

UN-NUMBERED GROUNDS OF APPEAL

145. After ground 34, which is the last ground of appeal in part D (trial) of the supplementary notice of appeal, and before ground 35, which is the first ground of appeal in part E (elements of misappropriation), there is, as we remarked earlier, six pages of argument, that we have not quoted.

146. We presume that the arguments raised are intended to be grounds of appeal and will deal with them as such. They are set out in three categories:

evidence at trial (pages 16 to 19 of the supplementary notice of appeal);
voir dire hearing/money trail witnesses (pages 19 and 20 of the supplementary notice of appeal);
material witnesses No 2 (page 21 of the supplementary notice of appeal).

Evidence at trial

147. Is argued that the trial judge erred in law and fact in accepting the evidence of seven of the State witnesses.

1: Jesse Yore, Assistant Secretary, Prevention and Deterrence, Financial Accountability and Inspection Division, Department of Finance. He produced 18 of the 21 PGAS payee history reports for the various law firms which were payees of some of the 65 Department of Finance cheques that were at the centre of the trial.

148. It is argued that the trial judge erred in accepting his evidence and relying on s 61 of the Evidence Act as there was no search warrant and his evidence was hearsay.

149. We reject those arguments. There was no need for a search warrant. The documents produced by the witness were business records. His evidence was not hearsay. The trial judge did not err in accepting this witness’s evidence.

2: Kavilla Yeme, Senior Accountant, Accounts Payable, Department of Finance. He was able to retrieve three originals of the 65 cheques the subject of the charges. He was unable to locate the supporting documents requested by the police.

150. It is argued that the trial judge erred in accepting his evidence as there was no search warrant authorising release of confidential documents to the police and his evidence was not corroborated by the Secretary for Finance.

151. We reject those arguments. There was no need for a search warrant. There was evidence that the witness’s cooperation with the police during the investigation was approved by the then Secretary for Finance, Dr Ken Ngangan. The trial judge did not err in accepting this witness’s evidence.

3: Christine Gimots, Acting Case Management and Systems Manager, Office of Solicitor-General. Her evidence is summarised at paragraphs 55 and 56 of the judgment on verdict:

55. There were no brief-outs by the OSG to: Sino & Co in 2007, 2008, 2009, 2010 or 2011; Jack Kilipi Lawyers in 2008, 2009, 2010 or 2011; Harvey Nii Lawyers in 2007 or 2010; Kipoi Lawyers in 2010; or PKP Nominees between 2007 and 2011. She could not recall the OSG engaging: Sam Bonner Lawyers in 2007; Korowi Lawyers between 2007 and 2010; Yapao lawyers in 2007; or any of the named law firms prior to 2007. She was asked by police to check CMS in respect of the named law firms for legal bills and found no information on the firms and no bills owing to them. She was not asked to check for court ordered judgements.

56. Between 2007 to 2011 cheques for all legal bills incurred by the OSG were raised through DJAG’s accounts section and passed to the OSG for payment. She was not aware of any occasion when legal bills were paid directly by DoF. She was the authorising officer at the time for the payment of cheques. She collected the cheques and drafted the letter for release. Once the letter was signed by the Solicitor-General she called the law firm to collect the cheques. Requisitions attaching the invoice were sent to the Solicitor-General for approval, then to the Department Secretary to sign off as the s 32 officer, and then forwarded to the accounts section to do checks before raising the cheque for payment to the respective law firm’s trust account. She never experienced a payment of legal bills greater than K1m.

152. It is argued that the trial judge erred in accepting her evidence in the absence of a search warrant and in failing to rule that the witness did not tender all relevant cheques and payment vouchers.

153. We reject those arguments. There was no need for a search warrant. The fact that the witness did not tender all cheques and payment vouchers is irrelevant to the question of whether the witness’s evidence should be accepted. The trial judge did not err in accepting this witness’s evidence.

4: Miriam Kias Kiap, officer of the Department of Justice and Attorney-General 2003 to 2022; Deputy Secretary, Legal and Policy Division, 2019 to 2022; acting Deputy Solicitor-General at various times, most recently in 2013 and 2014. She gave evidence that during her time as Acting Deputy Solicitor-General less than 20 matters had been briefed out to Paul Paraka Lawyers. There were only a handful of brief-outs to a couple of the seven law firms who were the payees of some of the 65 cheques the subject of the case. There was no blanket brief-out to Paul Paraka Lawyers. In October 2006 there was a National Executive Council directive that payments to Paul Paraka Lawyers were to cease. She gave details of three court proceedings initiated by Paul Paraka Lawyers aimed at securing payment of allegedly outstanding legal fees, OS 829 of 2006, OS 867 of 2006 and MP 944 of 2006. Though some orders of the National Court in those proceedings required payment to Paul Paraka Lawyers to be made, those orders had been stayed by orders of the Supreme Court in SCM 3 of 2007.

154. Ms Kias’s evidence (summarised at paragraph 59 of the judgment on verdict) was that legal fees due in respect of brief-outs to private law firms are paid from a dedicated trust account managed and housed with the Department of Justice and Attorney-General.

155. This is separate from the process for payment of court judgment debts, which are paid by the Department of Finance upon approval by the Solicitor-General. All cheques generated within the Department of Finance are taken to the Office of Solicitor-General and collected by the plaintiff or their lawyer.

156. It is argued that the trial judge erred in accepting her evidence as it was hearsay and irrelevant to the charges faced by the appellant.

157. We reject those arguments. The witness’s evidence was neither hearsay nor irrelevant.

5: Neville Devete, former Solicitor-General. He gave evidence that he lodged a complaint with the National Fraud and Anti-Corruption Directorate in 2012 regarding the proposed payment by the Department of Finance of judgment debts against the State, which had not been processed through the Office of Solicitor-General. He also had heard that payments of legal fees were being made by the Department of Finance, which was not in accordance with the required procedure as legal bills are settled by the Department of Justice & Attorney-General after being processed by the Office of Solicitor-General. When he joined the Department of Justice & Attorney-General in 2006 he heard that a lot of cases had been briefed out to Paul Paraka Lawyers but the new Minister for Justice, Bire Kimisopa, put a stop to it. He was not aware of any brief-outs to the seven law firms who were payees of some of the 65 cheques the subject of the trial.

158. It is argued that the trial judge erred in accepting the evidence of Mr Devete as it was given by video-link in breach of the Mutual Assistance in Criminal Matters Act 2015 and in breach of the appellant’s constitutional right to a fair hearing and natural justice; it was relevant only to the “primary case”, not to the “secondary case” (the subject of the trial).

159. We reject those arguments. We endorse the reasons given by the trial judge in approving the State’s application for Mr Devete to give evidence by video-link in her Honour’s ruling of 29 September 2022 (The State v Paraka (2022) N9970). There was no breach of the Act relied on by the appellant. The witness’s evidence was significant and relevant and supported the State’s case.

6: Ekip Kop, Assistant Auditor-General, Office of Auditor-General. His evidence is summarised at paragraphs 42-45 of the judgment on verdict:

42. Ekip Pop is an Assistant Auditor-General with the Office of the Auditor-General. In 2012 or 2013 he was directed by the Auditor-General to join Taskforce Sweep (TFS). He produced Exhibit P19, a report headed “Investigation into Purported Legal Fees and Court Order Payments made to Paul Paraka Lawyers by the Department of Finance (2007 to 2013)”. The report was prepared on the materials provided to him by the Fraud Squad from DoF and the banks.

43. After reviewing DoF’s accountings records, PGAS and IFMS printouts, and bank records he found that certain monies had been paid to PPL or PKP Nominees through the accounts of several law firms during the period 2007 to 2011. He traced the monies through from the PGAS and IFMS records, through the various accounts, and observed that the monies paid to the firms were transferred almost immediately from the firms to PPL or PKP following receipt, less a deduction of between 5% and 10% usually retained by the firm. He explained the process that he undertook.

44. Attachment D to his report contains tables setting out the cheques paid by DoF to PPL, PKP Nominees, Harvey Nii Lawyers, Jack Kilipi Lawyers, Sino & Co Lawyers, Sam Bonner Lawyers, Yapao Lawyers, Korowi Lawyers, Kipoi Lawyers, and others during the period 2007 to 2013. What happened in 2012 and 2013 is arguably relevant to this case but out of an abundance of caution I have excluded those payments which relate to 2012 and 2013 from my consideration. His table contains the number, date, payee and amount of the cheque in each case, except that the cheque number is not available in six cases during the relevant period.

45. He formed the view that the payments were in breach of the PFMA given that the sum of money paid to a single law firm, PPL, over several years, was well above K10m, which required the approval of the Central Supply & Tenders Board, and that payments were “split” into amounts less than K10m to avoid the requirement, and that the payments breached the PFMA for being paid in the absence of both Certificates of Legal Clearance and Certificates of Technical Compliance as the payments purportedly related to legal services to the State. He formed the view that the monies had been channelled through the accounts of other firms to PPL and recommended the investigation and charging of several persons.

160. It is argued that Mr Kop’s evidence was given in breach of the Audit Act and was hearsay and that the trial judge erred in accepting it.

161. We are not satisfied that any breach of the Audit Act occurred. The evidence given by Mr Kop was relevant to the issues at trial. The audit report he prepared, which was admitted into evidence, was admissible and based directly on records obtained from the Department of Finance and bank records.

7: Pius Peng, Senior Seargent of Police, investigating officer. He gave evidence that he was a member of Task Force Sweep. In 2012 he became involved in the investigation of matters that eventually became the subject of the charges at trial. Key parts of his evidence are summarised at paragraph 119 of the judgment on verdict:

119. The investigating officer, Detective Constable, now Senior Sergeant Pius Peng, joined the National Fraud and Anti-Corruption Directorate (NFACD) in 1996. He was a member of the team called TFS which was established by government, and became involved in the investigation in 2012. The investigation commenced following a complaint received from the Solicitor-General, Neville Devete. They executed search warrants at the banks and conducted enquiries with DoF, OSG and DJAG. Enquiries in relation to court proceedings OS 876 revealed that the law firms which received payments from DoF were not parties. There was a payment of K30m to six law firms in 2013. Enquiries revealed that payments had also been made to law firms dating back to 2007. Those payments were not the initial subject of the complaint but they became aware of them as the investigation progressed. A detective was then assigned to deal with each law firm. Chief Inspector Gitua was the leading officer and was also in charge of the investigation relating to payments in 2012 and 2013, and Peng took over investigation for payments from 2007 to 2011. As for the investigations in relation to the other law firms the principals were arrested and charged with the same offences as the accused. TFS was disbanded in 2014. It did not affect the investigations. Charges were laid in this matter against the accused in July 2014. Despite repeated requests DoF was unable to produce any payment vouchers for the payments made to the law firms, and any explanation for the missing documents.

162. It is argued that the trial judge erred in failing to rule that the witness unlawfully commenced his criminal investigation three months before the search warrants were obtained in the National Court in 2013. It is further argued that his evidence was based on conjecture and hearsay and that he failed to give evidence of the money trail at the banks.

163. We reject those arguments. A member of the Police Force does not have to wait for the issuance of a search warrant before commencing a criminal investigation. There was no unlawful commencement of the investigation. No error of law was committed by the trial judge in relying on the evidence of this witness. The argument that his evidence was based on conjecture and hearsay is frivolous. To argue that this witness gave no evidence of the money trail is misconceived as he gave material evidence of steps he took to obtain the documents, which were admitted into evidence at the trial, which constituted “evidence of the money trail”.

Voir dire hearing/money trail witnesses

164. It is argued that the trial judge erred in law by:

admitting the seized bank documents in the exercise of the common law and constitutional discretion;
refusing in the judgment on verdict to revisit and overrule her voir dire ruling in The State v Paraka (2022) N9568;
improperly conducting the voir dire hearing on the “secondary case” (2007-2011) bank documents whereas the search warrant was for the “primary case” (2012-2013) documents and selective materials improperly obtained were used for the secondary case;
accepting the evidence of Chief Inspector Timothy Gitua, Asher Waffi (senior legal officer, Bank South Pacific) and Ms Benowa (an ANZ Bank officer) as none gave evidence of any money trails and the only evidence of money trails was in table 1, which was unlawfully introduced into evidence after submissions and before verdict;
drawing inferences and making findings of fact based on conjecture, surmises and analytical assumptions.

165. Those arguments are a restatement of arguments raised in other grounds of appeal that have been considered and dismissed. In particular:

the argument that the trial judge erred in admitting the seized bank documents in the exercise of the common law and constitutional discretion was considered and dismissed in ground 1(m);
the argument that the trial judge erred by refusing in the judgment on verdict to revisit and overrule her voir dire ruling in The State v Paraka (2022) N9568 was considered and dismissed in ground 1(n);
the argument that the trial judge erred by improperly conducting and concluding the voir dire hearing was considered and dismissed in grounds 19 to 21;
the argument that the trial judge erred by unlawfully introducing table 1 (the annexure to the judgment on verdict) into evidence after submissions and before verdict was considered and dismissed in grounds 1(l) and 34;
the argument that the trial judge erred by drawing inferences and making findings of fact based on conjecture, surmises and analytical assumptions was considered and dismissed in grounds 1(h) and 1(i).

166. We are not persuaded by any of those arguments. We find that the trial judge did not err in any of the ways contended for.

Material witnesses No 2

167. It is argued that the trial judge erred in law in failing to entertain a reasonable doubt in respect of all elements of the offence with which the appellant was charged in the absence of all material witnesses and evidence.

168. This is a rehash of arguments considered and dismissed in grounds of appeal 1(g) and 23. We dismiss the argument.

169. The trial judge noted that the case against the appellant was substantially circumstantial, then set out and applied the principles for deciding cases based on circumstantial evidence. Her Honour made findings of fact and then assessed whether the only reasonable hypothesis arising from the facts was that the elements of the offence of misappropriation in respect of each count was proven beyond reasonable doubt. Her Honour excluded the possibility that the 65 Department of Finance cheques, to the value of almost K162 million, the vast bulk of the proceeds of which were deposited into the accounts of Paul Paraka Lawyers or PKP Nominees Ltd, were generated for proper and legitimate purposes.

170. It is also argued that the trial judge erred in law and fact by:

failing to rule that the prosecution failed to call all principals of the law firms and entities that were allegedly paid by the State;
failing to rule that the prosecution failed to undertake a thorough investigation into the books of accounts of the law firms and entities;
failing to rule that the State failed to prove the “money trail”;
shifting the burden of proof to the appellant.

171. We find that the trial judge did not err in any of those ways. There was no need to call the principals of the seven law firms to give evidence. There was no need to conduct an investigation of the law firms’ books of accounts. The State proved the money trail to the extent necessary to show that the bulk of the proceeds of the 65 Department of Finance cheques was quickly deposited into the bank accounts of Paul Paraka Lawyers or PKP Nominees Ltd, both of which were controlled by the appellant. The trial judge did not shift the burden of proof to the appellant.

(E) ELEMENTS OF MISAPPROPRIATION

172. There are 25 grounds of appeal, Nos 35-59, in this part of the supplementary notice of appeal.

(I) Property; Undue participation at trial by the trial Judge

The payment transactions in the Bank Accounts of the accused Law Firm and other 7 Law Firms and PKP Nominees Ltd (Table 1 of Court Annexed Decision at [290] to [415] were not in evidence before the Court during the trial and were not properly tested under cross- examination, and the Court erred in fact and in law in relying on them exclusively in its final decision.

The trial judge erred in law in unlawfully and unduly participating in the trial, and the accused rights to natural justice and a fair trial and full protection of the law were breached under ss 37(1) & (3) and 59 of the Constitution. Consequently, the trial judge erred in law in ruling that the purported DOF cheque deposits and transactions in the Bank Accounts and Bank Statements of the Law Firms (Table 1) were sufficient to show that the moneys and cheques in the Bank of PNG, and managed by DOF belonged to the State, when that specific evidence were not before the open Court during the trial.

The trial judge erred in law and fact in failing to rule that the element of “property” under s 383A(1)(a) and 3(a) and s 1 of the Criminal Code was not established generally in each of the five (5) counts in the Indictment, when:-

^(a)13 DOF cheques, payment vouchers and PGAS Transaction Reports were not produced in evidence at the trial for the first count.

^(b)15 DOF cheques, payment vouchers and PGAS Transaction Reports were not produced in evidence at trial for the second count.

^(c)6 DOF cheques, payment vouchers and PGAS Transaction Reports were not produced in evidence at trial for the third count.

^(d)20 DOF cheques, payment vouchers and PGAS Transaction Reports were not produced in evidence at trial for the fourth count.

^(e)26 DOF cheques, payment vouchers and PGAS Transactions and IFMS Transaction Reports were not produced in evidence at trial for the fifth count.

The trial judge erred in law in failing to make specific findings for every specific cheque payment to each Law Firms under each count, and the purpose of the payments (by direct or indirect circumstantial evidence) and the Prosecution failed to prove how the accused caused the payments to the Law Firms and how the accused dishonestly applied these cheques/monies to his own use.

SPECIFIC COUNTS IN THE INDICTMENT

The trial judge erred in both fact and law in failing to make findings in respect of each specific cheque payments by the DOF in each of the 5 counts. [three pages of the supplementary notice of appeal are omitted here]

(II) Belonging to the State

The trial judge erred in law and fact in failing to assign each and every cheque payments/ transactions as “property” of the State and erred in ruling generally that the purported cheque payments to PKP Nominees Ltd and the 7 Law Firms were property of the State in the absence of any specific evidence that all that the 65 cheque payments belonged to the State and were for specific purposes of the State, or for the purposes of court judgments (by way of direct or circumstantial evidence).

Consequently, the trial judge erred in fact and law in concluding that the State’s evidence excluded any rational possibility that the monies were applied for the State purpose, or Court Orders judgement or otherwise.

The trial judge erred in law in ruling on the Table of the transactions set out in Table 1 of the Judgment, which were not in evidence during the trial.

The trial judge erred in law and in fact in ruling that the alleged monies belonged to the State, when there was no evidence at trial from both the Bank of PNG, the Commercial Banks and DOF with respect to any Bank transactions involving any cheques from the DOF.

The trial judge erred in ruling that the State was the owner of the property under s 383A(1)(a) of the Criminal Code, when as a matter of fact and law, the transactions in the various Bank Accounts were private property, and owned by the 7 private Law Firms and PKP Nominees Ltd. They were no longer State property, as the State has no legal or equitable right over the transactions/monies.

(III) Applied to his own use and the use of others

The trial judge erred in law and fact in making findings against the accused when there were no direct evidence that the respective payments were paid to the accused directly, or part of the payments were made to the accused Law Firm with respect to each of the 65 cheque payments.

The trial judge erred in failing to find that there was no evidence of the dates the cheques were paid to the Law Firms, and specific dates monies were transferred and paid to the accused Law Firm and PKP Nominees Ltd.

The trial judge erred in unduly participating in the case by unlawfully including the transaction lists in Table 1 annexed to the Judgement, when that purported evidence was not properly before the Court during the trial.

The trial judge erred in fact and in law in concluding that the accused “applied” the monies for his own ultimate benefit, when there were no evidence with respect to each of the 65 cheques and the alleged money transfers to the accused Bank Accounts during the trial.

The trial judge erred in law in lifting the ”corporate veil” in respect of PKP Nominees Ltd in that there was no evidence that the accused was involved directly in the payments to PKP Nominees Ltd by the Department of Finance.

The trial judge erred in both fact and law in failing to entertain a reasonable doubt having regard to the totality of circumstances, where there were no evidence that payments were made to PKP Nominees Ltd and the 7 Law Firms and it was unsafe to conclude that monies belonging to the State were diverted other than for the purposes of the State.

Other purported findings by the- trial Judge at [314] to [352] of the Judgment were conjectures and surmises and analytical assumptions, and there were no evidence given at trial of monies being diverted for the purposes of the State and applied to the accused’s own use and use of others.

(IV) Dishonesty; Procured a person or person within Department of Finance

The trial judge erred in law in failing to make specific findings of dishonesty against unidentified persons at the DOF and the Court’s inconclusive inferences were based on conjectures, surmises and analytic assumptions.

The trial judge erred in law and fact in concluding that the failure by the DOF to produce payment vouchers, FF3 and FF4 Forms, and other supporting documents “only fortifies” the trial judge’s views of dishonesty on the part of the DOF unidentified officials.

54 Whilst expressing her doubt on how the payments were done at the DOF at [373], the trial judge erred in law and fact in finding that the accused counselled or procured the payment dishonestly under ss 7(1)(d) and 7(4) of the Criminal Code Act, in the absence of any direct or circumstantial evidence in respect of each of the 65 cheque payments by DOF; when:
- (a) The Finance Secretary and the Procurement Officers at the Finance Department did not give any evidence at the trial.
- (b) When the Attorney-General and any other Officers at the Office of the Attorney-General (as opposed to the Solicitor-General’s Office) did not give any evidence at the trial.
- (c) When Secretary for Justice and any of his Officers (as opposed to Solicitor General’s Office) did not give any evidence at the trial.
- (d) When there was no evidence of how the accused counselled or procured the payments at the Finance Department and Commercial Banks and Bank of PNG and the Law Firms’ Bank accounts.
- (e) When there was no evidence that the alleged payments by each cheque were for legal fees or Court Order payments: -
  - (i) In the absence of direct evidence from any officers of the Finance Department.
  - (ii) In the absence of evidence from the Bank of PNG against which alleged cheques were drawn.
  - (iii) In the absence of witnesses from the Commercial Banks.
  - (iv) In the absence of witnesses from the 7 Law Firms and PKP Nominees Ltd.
Her Honour erred in law misapplying the principles in Brian Kundi Lawi v The State [1987] PNGLR 183, which involved payments diverted for other purposes from funds meant for specific purposes.
The current case is dissimilar to the principles in Brian Kundi Lawi case when:
1. Lawi’s case dealt with diversion of funds meant for a specific purpose, and where there were clear direct evidence in place.
2. In the present case, there is no evidence of what the payments to the Law Firm and PKP Nominees Ltd were for, and also no evidence how these monies were diverted for the accused person’s use.
3. In the circumstances, the Court erred in law and fact in concluding by inference that the accused dishonestly procured and counselled the payments by the DOF.
4. The trial judge erred in law and fact in finding the accused guilty under s. 7(i)(d) and 7(4) of the Criminal Code.
The trial judge erred in law and fact in making these findings at [376] to [415] of the Judgment, when expressly expressing a serious doubt in the State’s case at [397] to [399].
The trial judge erred in law in failing to entertain a reasonable doubt in respect of the elements of the offence of misappropriation under s 383A of the Criminal Code.
Consequently, the trial judge erred in law in failing to dismiss all the 5 counts to the Indictment.

173. Grounds 35 and 36 are a restatement of previous grounds of appeal, beginning with 1(l), which are based on the flawed proposition that table 1 of the judgment on verdict is a piece of evidence on which the appellant had no opportunity to comment. Table 1 is not evidence. It is a summary of the evidence, which amply and relevantly demonstrates how the bulk of the proceeds of each of the 65 Department of Finance cheques was deposited in a short space of time after the original deposit either directly or indirectly into the bank accounts of Paul Paraka Lawyers or PKP Nominees Ltd. We dismiss grounds 35 and 36.

174. Grounds 37 to 39 argue that trial judge erred in:

failing to rule that the “property” in the offence of misappropriation was not proven in respect of each of the five counts on the indictment due to gaps in the evidence in the form of missing cheques, payment vouchers and PGAS transaction reports; and
failing to make specific findings for every cheque in respect of each count.

175. We consider that the trial judge properly set out at paragraph 233 of the judgment on verdict the elements of the offence of misappropriation as explained by the Supreme Court in Kavo v The State [2015] 2 PNGLR 232, viz that the accused:

(a) applied;
(b) to his own use or to the use of another;
(c) property;
(d) belonging to another person;
(e) dishonestly.

176. We consider that the trial judge properly and adequately dealt with the property element of each of the five charges on the indictment. This is borne out by her Honour’s discussion of the property element at paragraphs 291 and 292 and 310 of the judgment on verdict:

292. The records also establish beyond reasonable doubt that between 2007 and 2011 a further 40 cheques were paid by DoF to one of seven law firms, namely Harvey Nii Lawyers, Sino & Company Lawyers, Sam Bonner Lawyers, Yapao Lawyers, Korowi Lawyers, Jack Kilipi Lawyers and Jack Kipoi Lawyers, at various times, in the amounts set out in Table 1. The cheques ranged in value from K1.5m to almost K4m. Furthermore, where the cheques were paid to one of the named law firms, the bulk of the proceeds of those cheques was then paid to PPL or PKP Nominees, usually within a matter of days if not the same day. ...

310. I am satisfied beyond reasonable doubt that the monies held to the credit of the State with BPNG and controlled by DoF, upon which the cheques payable to PKP Nominees and each of the seven law firms were raised, were property for the purpose of s 383A of the Criminal Code.

177. We endorse the trial judge’s process of reasoning as correct. Her Honour did not err in the manner contended for in grounds of appeal 37 to 39. We dismiss those grounds.

178. Grounds 40 to 44 argue that the trial judge erred in law in determining that the property allegedly misappropriated belonged to the State, by:

not assigning each and every cheque payment as “property of the State” (ground 40);
wrongly concluding that the State’s evidence excluded any rational possibility that the monies were applied for State purposes (ground 41);
wrongly relying on table 1, which was not in evidence during the trial (ground 42);
wrongly ruling that the money belonged to the State in the absence of supporting evidence from the Bank of Papua New Guinea or commercial banks or the Department of Finance with respect to any bank transactions (ground 43);
wrongly ruling that the State was the owner of the property, when the transactions in the various bank accounts showed that the proceeds of the cheques, once deposited into the bank accounts of the seven law firms or PKP Nominees Ltd, was private property (ground 44).

179. We consider that the trial judge properly and adequately dealt with the element of the five charges requiring proof that the property put to the use of the accused or some other person belonged to the State. This is borne out by her Honour’s discussion of this element at paragraphs 311 to 313 of the judgment on verdict:

311. It is well established that pursuant to s 383A(3)(d) of the Criminal Code, the State retains ownership in monies until the monies are applied for the purpose for, or according to the condition upon, which they are provided: see the Supreme Court decision of Brian Kindi Lawi v The State [1987] PNGLR 193, and the numerous cases applying it, including Havila Kavo, supra and Wartoto v The State (2019) SC1834; and Kaya v The State (2020) SC2026.

312. I am satisfied beyond reasonable doubt that the monies held to the credit of the State with BPNG [Bank of Papua New Guinea] and controlled by DoF, and upon which the cheques payable to PKP Nominees and each of the seven law firms were raised, were held for State purposes, in particular the payment of court ordered judgements against the State. Until the monies were applied for the purposes of the State, the State retained an interest in the monies.

313. For the reasons outlined below the evidence excludes any rational possibility that the monies were ever applied for any State purpose, court ordered judgement or otherwise. I am therefore satisfied beyond reasonable doubt that the State retained an interest in the monies and was their owner pursuant to s 383A(3)(d) of the Criminal Code.

180. The trial judge did not err in the manner contended for in grounds of appeal 40 to 44. We dismiss those grounds.

181. Grounds 45 to 51 argue that the trial judge erred in law in determining that the element of the offence of misappropriation that the property was applied to the use of the accused or some person other than its owner, was proven, in that:

there was no direct evidence that the each of the 65 cheque payments was paid to the appellant or his law firm directly (ground 45);
there was no evidence of the dates on which the cheques were paid to the law firms and the specific dates on which monies were transferred and paid to the appellant’s law firm and PKP Nominees Ltd (ground 46);
the trial judge unduly participated in the trial by the unlawful inclusion of table 1 as evidence (ground 47);
there was no evidence that the appellant applied the money in respect of each cheque for his own ultimate benefit as there was no evidence that any of the money was transferred to any of his own bank accounts (ground 48);
the “corporate veil” in respect of PKP Nominees Ltd was erroneously lifted as there was no evidence that the appellant was directly involved in the payments made to PKP Nominees Ltd by the Department of Finance (ground 49);
the trial judge erroneously failed to entertain a reasonable doubt that the cheque payments made to the seven law firms and PKP Nominees Ltd were made for the purposes of the State (ground 50);
there was no evidence that State money had been diverted and applied to the use of the appellant or other persons (ground 51).

182. We consider that the trial judge properly and adequately dealt with the element of the offence requiring proof that the property was applied to the use of the accused or some person other than its owner. This is borne out by her Honour’s determination of this element of the offence at paragraphs 336 to 352 of the judgment on verdict:

336. ... I will return to the question of whether any monies might have been owing from matters briefed out to PPL [Paul Paraka Lawyers] by the former Attorney-General prior to late 2006 below.

337. Regardless of whether any monies might have been owing prior to late 2006, that was a matter disputed by the State as evidenced by the fact that it appealed the orders to pay K13m to PPL and obtained orders of stay. I reject the submission by the accused that the Supreme Court only stayed the order to pay K6.4m in OS 876 of 2020 and not Order 5 of the orders made on 29 December 2006. The Supreme Court stayed the entire proceedings. I don’t think the Court could have been more clear but Order 5 is really beside the point.

338. The proceedings remained on foot until July 2014 when the Supreme Court upheld the State’s appeal and quashed all orders made on 17 November 2006 and 2 March 2007 in both proceedings except for the orders granting leave for judicial review, and remitted the matter to the National Court: Kalinoe v Paul Paraka Lawyers (2014) SC1366. Earlier applications by the accused to have the appeals dismissed, and to discharge the orders, were dismissed by the Supreme Court on 27 September 2009 and 30 April 2010, respectively: Kimisopa et al v Paul Paraka trading as PPL (2009) SC1325 and Kalinoe et al v Paul Paraka trading as PPL (2010) SC1024.

339. The evidence of Mr Devete excludes any possibility that new matters were briefed out to PPL, through the OSG, or that any legal fees were paid to PPL, through the OSG, between 2007 to 2011.

340. Regardless of Order 5 or the powers of the Attorney-General under the Attorney-General Act, the evidence excludes any possibility that the cheques were raised in settlement of PPL’s legal fees for any period, before or after 2007, outside the normal process.

341. It is implausible that the Attorney-General would have briefed-out any new matters to PPL, or approved the payment of such large amounts of monies to PPL in settlement of legal fees, over such an extended period of time, outside established procedure, and without consulting the Solicitor-General, in any event but particularly given the ongoing proceedings with PPL, and the actions taken by the Attorney-General, the Minister for Justice and others which prompted the legal proceedings, not to mention the investigation conducted within the Attorney-General’s own department into payments to PPL.

342. For similar reasons there can also be no doubt that the monies were not paid to PPL in settlement of any judgements obtained by PPL. All such judgements required clearance by the Solicitor-General, upon endorsement of a certificate under the Claims By and Against the State Act by the Solicitor-General, and an FF3 approved by him. Again, the evidence of Mr Devete and Ms Kias excludes any such possibility.

343. Moreover, and quite simply, the fact that the cheques were not raised in favour of PPL excludes any possibility, particularly when taken in all of the circumstances, that the State intended to pay the monies to PPL.

344. The evidence also excludes any rational possibility that cheques were raised in favour of PKP Nominees for the purposes of the State.

345. The evidence of Mr Devete, Ms Kias and Ms Gimot excludes the possibility that any legal fees were paid to PKP Nominees during the relevant period. Furthermore, whilst it might have been referred to by the State in its brief facts as a law firm, PKP Nominees is not a law firm. According to IPA records its principal business is property investment. There can be no valid reason for the payment of legal fees to the company and any suggestion that PPL’s legal fees were paid to it because of its relationship to the accused is excluded for the reasons outlined above.

346. For similar reasons the evidence excludes any possibility that the monies were paid to PKP Nominees in settlement of any judgement debts or ex gratia payments, particularly having regard to the size, frequency and extended period over which the payments were made, and having regard to the evidence of Mr Devete, and bearing in mind that PKP Nominees was not a party to either OS 829 or OS 876 of 2006, which orders had been stayed in any event.

347. Furthermore, the evidence establishes that the monies were applied to the ultimate benefit of the accused.

348. There is no dispute and I find that the accused was the principal of PPL at all times. This is reflected in the IPA’s records. It was the accused’s law firm. He controlled it and the only reasonable inference is that he controlled its bank account. The accused appears to concede this in his submissions but I make it clear that I make this finding regardless of his concession and despite the fact that no records showing the signatory or signatories to the account were produced by the State.

349. The accused was the sole owner and director of PKP Nominees during the relevant period. IPA records show that its principal place of business and registered place for service was PPL at PPL’s address. It had only one employee. In all the circumstances, I am satisfied beyond reasonable doubt that the accused controlled the company’s bank account. I am satisfied of this fact even in the absence of bank records showing that he was a signatory to the account.

350. The accused is not protected by the “corporate veil” as he suggests. The “piercing of the corporate veil” refers to the judicially imposed exception to the separate legal entity principle, whereby courts disregard the separateness of the corporation and hold a shareholder responsible for the actions of the corporation as if it were the actions of the shareholder. The State is not seeking, however, to hold the accused responsible for the actions of PKP Nominees in this case. It is seeking to hold him responsible for the application of monies to his own use and the use of others, monies which ultimately landed in the bank account over which he had control. For obvious reasons a person does not have to have title or legal ownership of a thing before it is applied to their use for the purposes of s 383A of the Criminal Code.

351. Even if the corporate veil doctrine was of relevance here, which it is not, I would have no hesitation in lifting it for the reasons outlined in State v Wyborn: it would be justified in all the circumstances of the case and the Criminal Code by implication provides for it.

352. In summary, having regard to the totality of the circumstances, I am satisfied beyond reasonable doubt that at the time the cheques were raised in favour of PKP Nominees and each of the seven law firms monies belonging to the State were diverted from the purposes of the State and applied to the accused’s own use and the use of others.

183. We now determine grounds of appeal 45 to 51.

Re ground 45: It was inconsequential there was no evidence that the 65 cheque payments were made to the appellant directly, given the finding of fact of the trial judge (which we endorse) that the bulk of the proceeds of each cheque was deposited into the bank accounts of Paul Paraka Lawyers or PKP Nominees Ltd within a matter of days after the date of issue of the cheque and that the appellant controlled each of those accounts. We dismiss ground 45.
Re ground 46: There was ample evidence of the dates on which each of the 65 cheques was paid to the law firms. The trial judge referred to that evidence in paragraphs 290 to 292 of the judgment on verdict, and that evidence enabled her Honour to summarise her findings in table 1. Her Honour stated:

292. The records also establish beyond reasonable doubt that between 2007 and 2011 a further 40 cheques were paid by DoF to one of seven law firms, namely Harvey Nii Lawyers, Sino & Company Lawyers, Sam Bonner Lawyers, Yapao Lawyers, Korowi Lawyers, Jack Kilipi Lawyers and Jack Kipoi Lawyers, at various times, in the amounts set out in Table 1. The cheques ranged in value from K1.5m to almost K4m. Furthermore, where the cheques were paid to one of the named law firms, the bulk of the proceeds of those cheques was then paid to PPL or PKP Nominees, usually within a matter of days if not the same day.

We dismiss ground 46.

Re ground 47: The trial judge did not “unduly participate” in the trial and did not unlawfully include table 1 as evidence. We reiterate our determination that table 1 is not an item of evidence. It is the trial judge’s summary of evidence. We dismiss ground 47.
Re ground 48: It is inconsequential that there was no evidence that any of the proceeds of the 65 cheques was deposited into the appellant’s bank accounts, given the finding of fact of the trial judge (which, we reiterate, we endorse) that the bulk of the proceeds of each cheque was deposited into the bank accounts of Paul Paraka Lawyers or PKP Nominees Ltd within a matter of days after the date of issue of the cheque and that the appellant controlled each of those accounts. We dismiss ground 48.
Re ground 49: It is inconsequential that there was no evidence that the appellant was directly involved in the payments made to PKP Nominees Ltd by the Department of Finance as there is no rational explanation available as to how and why in the period from 2007 to 2011, 25 of the 65 Department of Finance cheques were paid directly into the bank account of PKP Nominees Ltd other than that the appellant was involved. We dismiss ground 49.
Re ground 50: The trial judge did not err by failing to entertain a reasonable doubt that the 65 cheque payments made to the seven law firms and PKP Nominees Ltd were made for the purposes of the State. Her Honour’s detailed analysis of the evidence excluded all reasonable possibilities that the 65 cheque payments were made in respect of any justifiable legal fees or judgment debts. We dismiss ground 50.
Re ground 51: The trial judge did not err by basing conviction on “conjectures and surmises and analytical assumptions”. Conviction was based on hard evidence and findings of fact that rationally led to inevitable conclusion that the appellant was guilty. We dismiss ground 51.

184. Grounds 52 to 54 argue that the trial judge erred by failing to make specific findings of dishonesty against any identifiable officer of the Department of Finance, in that:

inferences drawn were inconclusive and based on conjectures, surmises and analytic assumptions (ground 52);
the failure by the Department of Finance to produce payment vouchers, FF3 and FF4 forms and other supporting documents in relation to each of the 65 cheque payments was unjustifiably regarded as fortifying the trial judge’s view of dishonesty on the part of unidentified Department of Finance officers (ground 53);
the unreasonable inference was drawn that the appellant had counselled or procured unidentified Department of Finance officers to make the 65 cheque payments (ground 54).

185. In his written submission at page 13, the appellant elaborates on grounds 52 to 54 by arguing that the trial judge erred in law by:

not requiring that principal offenders under s 7 of the Criminal Code be expressly identified and facts as to their participation in commission of the offence be clearly pleaded in the indictment;
not requiring that the allegations that the appellant was a principal offender be pleaded in the indictment in breach of s 528(1) of the Criminal Code;
finding the appellant guilty of counselling and procuring commission of the offences by Department of Finance officers;
not requiring that the facts on arraignment specifically plead s 7.

186. We reject those arguments. There was no requirement under the Criminal Practice Rules 1987 or under s 528(1) of the Criminal Code for such details to be included in the indictment. The State invoked s 7 on arraignment.

187. We consider that the trial judge properly and adequately dealt with the dishonesty element of the offence of misappropriation by finding that the appellant had procured an officer or officers within the Department of Finance to make the 65 cheque payments in the manner that they were made from 2007 to 2011. This is borne out by her Honour’s discussion of these issues at paragraphs 368 to 374 of the judgment on verdict:

368. There is an overwhelming inference that the person or persons in DoF who applied the monies to the accused’s use and the use of others did so dishonestly having regard to the size, number and frequency of the cheques raised, and the extended period over which that took place.

369. It is also relevant that a number of the cheques were raised in favour of different recipients on the same day. For instance, on 23 August 2007 cheques in the sums of K3m and K1.5m were issued to Harvey Nii Lawyers and Sino & Company Lawyers, respectively. On 31 December 2007, cheques in the sums of K3.5m, K3m, and K3.5m were issued to Sino & Co Lawyers, Korowi Lawyers and PKP Nominees, respectively, all by reference to “Court Order OS #876/20”. See also the payments on 28 February 2008, and 15 February 2010. In 2011 K2m each was paid to Sino & Co Lawyers, Jack Kilipi Lawyers and PKP Nominees on 6 July 2011. On 26 July 2011 a further K2m, K3m and K2m, respectively, was paid to the same recipients.

370. In addition, the cheques were purportedly raised in settlement of legal fees when DoF does not pay legal fees, or in settlement of court orders when the evidence of Mr Devete excludes the possibility that there were any such orders, or that any such orders were supported by the necessary FF3 documentation, including a certificate executed by him pursuant to the Claims By and Against the State Act, or in repeated settlement of legal fees or orders in OS 876 of 2006 when none of the payments matched the orders referred to in value or beneficiary.

371. Furthermore, it is clear from the evidence of Mr Yore, Ms Kias and Mr Devete, that the cheques raised by DoF were not sent to DJAG for distribution in accordance with standard practice. If they had been Mr Devete would have become aware of them as he was the officer responsible for formally closing any file upon receipt of a cheque from DoF.

372. The raising of cheques in favour of PKP and the law firms, none of which had any entitlement to them, was clearly dishonest according to the standards of honest and reasonable people. I am also satisfied beyond reasonable doubt that having regard to the intelligence and experience necessarily required by a person employed in DoF that they must have appreciated that what they were doing was dishonest according to those standards at the time they applied the property. There is no other rational inference. Far from raising a doubt in my mind, the fact that no payment vouchers, FF3 or FF4 forms, or other supporting material, could be produced by DoF only fortifies my view.

373. In all the circumstances, the only rational inference is that the cheques were raised with the connivance of a person or persons within DoF. How precisely that was done, or by whom, whether upon direction or by manipulating PGAS or IFMS I cannot say. The only alternative is that the cheques were raised after passing through the normal procurement process because they were supported by documents which must have been false or misleading, for example the order in OS 876 of 2006, but for the reasons outlined above, the defects associated with the payments were stark and the combination of circumstances excludes that possibility.

374. Furthermore, I am satisfied beyond reasonable doubt that the accused counselled or, in fact, procured the person or persons in DoF to dishonestly apply the monies to his own use and the use of others in all the circumstances. The evidence establishes that extraordinarily large amounts of monies were applied to the ultimate benefit of the accused, to which he had no entitlement, on a frequent basis, over a period of several years. There is no other rational inference.

375. The monies were paid to a company solely owned and operated by the accused but not bearing his name, or siphoned through the accounts of seven other law firms, in a clear attempt to disguise the payments and distance them from the accused.

188. We consider that the trial judge committed no error of law when deciding that the appellant was criminally liable under s 7(1)(d) of the Criminal Code and was properly charged with committing the offences himself. We endorse her Honour’s finding at paragraph 381 of the judgment on verdict:

381. In the circumstances the evidence establishes beyond reasonable doubt that the offences charged in the indictment were committed by a person or persons in DoF; that the accused knew the essential facts constituting the offences in each case, including the state of mind of the person or persons who committed the offences, and that he procured, that is caused the perpetrator to commit the offences in each case, for the purposes of establishing his liability pursuant to s 7(1)(d) of the Criminal Code. The accused was therefore properly charged with committing the offences himself.

189. We determine grounds of appeal 52 to 54 as follows.

190. Re ground 52: The trial judge did not err in entering a conviction without identifying the person or persons within the Department of Finance responsible for facilitating the 65 cheque payments. It was not possible on the evidence available, and it was not necessary, to identify any particular person or persons. It was obvious that some person or persons did things to facilitate the payments and we agree with the trial judge that there is an “overwhelming inference that the person or persons in DoF who applied the monies to the accused’s use and the use of others did so dishonestly having regard to the size, number and frequency of the cheques raised, and the extended period over which that took place”. We dismiss ground 52.

191. Re ground 53: The trial judge did not err when commenting that the failure by the Department of Finance to produce payment vouchers, FF3 and FF4 forms and other supporting documents only fortified the view formed about dishonesty. The trial judge’s comment was unremarkable and rational. We dismiss ground 53.

192. Re ground 54: It is not correct to state that there was no circumstantial evidence that the appellant counselled or procured a person or persons within the Department of Finance to make the 65 cheque payments. We consider that the circumstantial evidence was overwhelming and provided ample justification for the trial judge’s conclusion as to the dishonesty element of the offences at paragraph 383 of the judgment on verdict:

383. The accused’s conduct was dishonest according to the standards of honest and reasonable people. Over a period of five years the accused procured another person or persons to apply to his own use and the use of others more than K162m to which he was not entitled. I am satisfied beyond reasonable doubt that having regard to the intelligence, education and experience of the accused, and the lengths taken by him to disguise the payments, that he appreciated at the time that he procured others to apply the property to his own use and the use of others that what he was doing was dishonest according to those standards. There is no other rational inference. If required, this would establish the guilt of the accused pursuant to s 7(4) of the Criminal Code. As above, however, I am satisfied beyond reasonable doubt that his conduct is captured pursuant to s 7(1)(d) of the Criminal Code.

193. There was no need for the indictment to plead the name(s) of the officers of the Department of Finance responsible for drawing of the 65 Department of Finance cheques. No error of law or fact was committed by the trial judge in finding that the appellant was criminally liable for the offence of misappropriation by virtue of s 7(1)(d) of the Criminal Code. We dismiss ground 54.

194. Grounds 55 and 56 argue that the trial judge misapplied the principles in Brian Kundi Lawi v The State [1987] PNGLR 183. Lawi dealt with diversion of funds to purposes other than the specific purpose for which the funds were intended. The appellant argues that his case is distinguishable from Lawi as there was no evidence of what the payments to the seven law firms or PKP Nominees Ltd were for.

195. We consider that the trial judge properly and adequately applied the principles in Lawi to explain that the property at the centre of each of the five counts on the indictment remained State property as it was not applied to State purposes. This is borne out by her Honour’s discussion of these issues at paragraphs 402 to 406 of the judgment on verdict:

405. The evidence established beyond reasonable doubt that at the time the cheques were raised property belonging to the State was deflected from the purposes of the State and applied to the accused’s own use and the use of others, Easton v R ... [[1994] 1 Qd R 532] adopted and applied.

406. The State therefore retained an interest in the property and was its owner: Brian Kindi Lawi v The State [1987] PNGLR 193 applied.

196. The trial judge did not err in the manner contended for in grounds of appeal 55 and 56. We dismiss those grounds.

197. Grounds 57 to 59 argue that the trial judge erred by concluding that the appellant was guilty of the five counts on the indictment, in that:

serious doubt as to the State’s case had been expressed at paragraphs 397 to 399;
a reasonable doubt ought to have been entertained;
the five counts on the indictment ought to have been dismissed.

198. These grounds essentially repeat ground 33, that the trial judge erred in failing to entertain a reasonable doubt after making a number of findings demonstrating clear doubt. The only new material is the inclusion of paragraph 397 of the judgment on verdict in the paragraphs alleged to be an expression of doubt by the trial judge as to the strength of the State’s case. So the argument is based on paragraphs 397 to 399 of the judgment on verdict where her Honour stated:

397. As above, it is not clear which person or persons occupied the position of Attorney-General at all times during the relevant period, or prior to 2007, and it does not appear to be in dispute that at least two have since died. These matters should have been made clear but I am not satisfied that there was any unfair conduct on the part of the State in not calling the person or persons concerned, and for the reasons outlined above the fact that they were not called raises no doubt in my mind.

199. As we indicated in our determination of ground 33, the comments of the trial judge were unremarkable and justified. The comments are not expression of a “serious doubt in the State’s case”. The comments are not inconsistent with the guilty verdict. There was no error in law by the trial judge in failing to entertain a reasonable doubt in respect of the elements of the offence of misappropriation or in failing to dismiss the five counts of the indictment. We dismiss grounds of appeal 57 to 59.

(F) TWO-TIER TRIAL: TRIAL IN OPEN COURT V FINDINGS BASED ON OUTSIDE FACTS

200. There are 12 grounds of appeal, Nos 60-70, in this part of the supplementary notice of appeal.

The trial Judge erred in law in adopting a two-tier approach in the trial.
In open Court from the commencement of the trial upon arraignment on the 14^th September 2021, up to the close of the trial on the 21^st September 2022, none of the 11 State witnesses produced any single evidence to sustain all the relevant essential elements of the offence of misappropriation in respect of each of the 5 counts of the Indictment.
The trial judge erred in law and fact in failing to be bound by her own findings of facts as set out at [257] to [289] of the judgment based on State witnesses’ evidence at [11] to [132]
At the trial, the prosecution did not lead any evidence to prove all the 65 DOF cheques (if any) including payment vouchers pursuant to s 531(2) of the Criminal Code.
The trial judge erred in law in inventing misapprehended facts after the end of the trial, and on the 26^th May, 2023 found the prisoner guilty of all the 5 counts of the Indictment based solely on the Bank Transaction Reports annexed in the Judgment Table 1 - The State v. Paul Paraka (2023) N10273 at [290] when the State failed to comply with s 531(2) of the Criminal Code.
The purported 65 Bank Transaction Reports were not produced in evidence by any State witnesses through Examination-In-Chief at the trial, and the offender did not test the Prosecution’s case under cross-examination.
The verdict judgment on all the requisite elements of the offence under [290] to [415] of the judgment was the trial Judge’s own doing without any input by the offender.
The offender claimed breach of his constitutional right to natural justice and fair trial under ss 37(3) and 59 of the Constitution.

Offender found guilty under a wrong Law

The trial Judge erred in law in finding the offender guilty based on purported 65 Bank Transactions when the trial judge assumed they were “criminal property” and money laundering under ss 508A and 508B of the Criminal Code and s 34 of the Proceeds of Crimes Act 2005.
The trial judge also erred in law in making these findings based on the assumption that the Offender participated in the criminal offence of obtaining property under false pretence under s 404(1)(a) and conspiracy to defraud under s 407 of the Criminal Code.
The trial Judge erred in law in finding the offender guilty of all the 5 counts in the Indictment in breach of s. 531(1) and (2), 16, 560 and 564 of the Criminal Code and s 37(8) of the Constitution.

201. Grounds 60 to 67 argue that the trial judge erred in law and/or fact by:

adopting a two-tier approach in the trial (ground 60);
finding the appellant guilty when none of the 11 State witnesses produced any single evidence to sustain the elements of the offence of misappropriation in respect of each of the five counts on the indictment (ground 61);
failing to be bound by her Honour’s own findings of fact (ground 62);
failing to find that the prosecution did not lead any evidence to prove that the proceeds of all 65 Department of Finance cheques had been diverted to improper purposes (ground 63);
inventing misapprehended facts by reliance on table 1, after the end of the trial (ground 64);
entering a guilty verdict in the absence of evidence of the 65 bank transaction reports (ground 65);
entering a guilty verdict without any input by the appellant (ground 66);
entering a guilty verdict in breach of the appellant's right to a fair trial and natural justice in accordance with ss 37(3) and 59 of the Constitution (ground 67).

202. We determine grounds 60 to 67 as follows.

203. Re ground 60: By arguing that the trial judge took a “two-tier approach in the trial”, we presume that the appellant is arguing that the trial judge introduced evidence in the form of table 1 after the close of evidence and convicted the appellant on the basis of it without giving him the opportunity to be heard. We have considered that argument and dismissed it in our determination of grounds 1(l) and 34. We dismiss ground 60.

204. Re ground 61: The argument that none of the State witnesses produced any evidence to sustain all elements of the offence of misappropriation is the same as the argument raised in ground 1(h) (that the trial judge erred in relying on the uncorroborated circumstantial evidence of the State witnesses). We have dealt with the argument and dismissed it in our determination of ground 1(h). We dismiss ground 61.

205. Re ground 62: The argument that the trial judge failed to be bound by her own findings of fact appears to be a restatement of the arguments in ground 22 (that the trial judge misapplied the law on circumstantial evidence) and ground 25 (that there was no direct or circumstantial evidence on which the appellant could be found guilty). We have dealt with the argument and dismissed it on our determination of grounds 22 and 25. We dismiss ground 62.

206. Re ground 63: The argument that the State led no evidence to prove that the proceeds of all 65 Department of Finance cheques had been diverted to improper purposes appears to be a restatement of grounds 55 and 56 (that the trial judge misapplied the principles of Lawi when finding that the proceeds of the 65 Department of Finance cheques was property of the State that had been diverted to the use of the appellant and others). We have dealt with the argument and dismissed it on our determination of grounds 55 and 56. We dismiss ground 63.

207. Re ground 64: The argument that the trial judge “erred in law in inventing misapprehended facts after the end of the trial” is a repeat of the argument in grounds 1(l) and 34 (the trial judge introduced evidence in the form of table 1 after the close of evidence and convicted the appellant on the basis of it without giving him the opportunity to be heard). We have dealt with the argument and dismissed it on our determination of grounds 1(l) and 34. We dismiss ground 64.

208. Re ground 65: It is unclear what the appellant means by the “purported 65 bank transaction reports were not produced in evidence by any State witnesses”. However, if he is referring to table 1, which is the trial judge’s analysis of how each of the 65 Department of Finance cheques were applied, the argument in ground 65 involves the misconception that table 1 is an item of evidence and is a rehash of grounds 1(l) and 34. We have dealt with the argument and dismissed it on our determination of grounds 1(l) and 34. We dismiss ground 65.

209. Re ground 66: The argument that the verdict was the trial judge’s “own doing without any input” by the appellant is vague and misconceived. The trial judge on multiple occasions throughout the judgment on verdict summarised and addressed the submissions of the appellant. This was not a case in which it could be said that there was “no input” by the appellant. Ground 66 is dismissed.

210. Re ground 67: The argument that the appellant’s right to a fair trial and natural justice under ss 37(3) and 59 of the Constitution were breached, which appears to be based on the proposition that table 1 was vital evidence that was introduced as evidence after the close of the evidence and used as the basis for the guilty verdict, was addressed and dismissed in our determination of ground 1(l) and 34. We rely on our reasons for dismissal of grounds 1(l) and 34 and dismiss ground 67.

211. Grounds 68 to 70 introduce new or amended arguments that the trial judge erred in law by:

finding the appellant guilty based on the purported 65 bank transactions and an assumption that the proceeds of the transactions were criminal property and amounted to money laundering under ss 508A and 508B of the Criminal Code and s 34 of the Proceeds of Crimes Act (ground 68);
assuming that the appellant participated in commission of offences under ss 404(1)(a) and 407 of the Criminal Code (ground 69);
entering a guilty verdict in breach of ss 531(1) and (2), 16, 560 and 564 of the Criminal Code (ground 70).

212. Re ground 68: We reject the assertion that the trial judge made any assumption that the proceeds of the 65 Department of Finance cheques were criminal property and amounted to money laundering under ss 508A and 508B of the Criminal Code and s 34 of the Proceeds of Crimes Act based on ss 404(1)(a), 407, 508A or 508B of the Criminal Code. Ground 68 is speculative and not based on the reasons for judgment of the trial judge. It is dismissed.

213. Re ground 69: We reject the assertion that the trial judge made any assumption that the appellant participated in commission of offences under ss 404(1)(a) and 407 of the Criminal Code. Ground 69 is speculative and not based on the reasons for judgment of the trial judge. It is dismissed.

214. Re ground 70: The argument that the guilty verdict was entered in breach of ss 531(1) and (2) of the Criminal Code was addressed and dismissed in ground of appeal 17. We refer to our reasons for dismissing ground 17. The presentation of one indictment and inclusion in it of five separate misappropriation charges did not offend against s 531.

215. The balance of ground 70 argues that the guilty verdict was entered in breach of ss 16 (person not to be punished twice for same offence), 560 (pleas) and 564 (plea of autrefois convict or autrefois acquit) of the Criminal Code. These provisions state:

Section 16

(1) Subject to Subsection (2), a person cannot be punished twice under the provisions of this Code or under the provisions of any other law for the same act or omission.

(2) Subsection (1) does not apply where an act or omission is such that by means of it the offender causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing the death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission.

Section 560

(1) If the accused person does not apply to quash the indictment, he must either plead to it, or demur to it on the ground that it does not disclose any offence cognizable by the court.

(2) If the accused person pleads, he may plead—

(a) that he is guilty of the offence charged in the indictment, or, with the consent of a State Prosecutor, of any other offence of which he might be convicted on the indictment; or

(b) that he is not guilty; or

(c) that he has already been convicted—

(i) on an indictment on which he might have been convicted of the offence with which he is charged; or

(ii) of an offence of which he might be convicted on the indictment; or

(d) that he has already been acquitted on an indictment—

(i) on which he might have been convicted of the offence with which he is charged; or

(ii) of an offence of which he might be convicted on the indictment; or

(e) that he has already been tried and convicted or acquitted of an offence committed or alleged to be committed under such circumstances that he cannot under this Code be tried for the offence charged in the indictment; or

(f) that he has been pardoned for the offence charged in the indictment; or

(g) that the court has no jurisdiction to try him for the offence.

(3) Two or more pleas may be pleaded together, except that the plea of guilty cannot be pleaded with any other plea to the same charge.

(4) An accused person may plead and demur together.

Section 564

In a plea that the accused person has already been convicted or acquitted, it is sufficient to state that he has been lawfully convicted or acquitted, as the case may be, of the offence charged in the indictment, or of the other offence of which he alleges that he has been convicted or acquitted, and in the latter case to describe the offence in any way in which it is commonly known.

216. We do not appreciate the relevance of those provisions. They have been included in the supplementary notice of appeal without elaboration of their significance. These provisions are not mentioned in the judgment on verdict. We cannot find any detailed reference to them in the appellant’s written or oral submissions. We dismiss the whole of ground of appeal 70.

(G) INSUFFICIENT CONSIDERATION TO ACCUSED’S SUBMISSION

217. There is one ground, No 71, in this part of the supplementary notice of appeal.

the trial judge erred in law and fact in failing to address and give any considerations at all to relevant legal arguments submitted in both oral/written arguments some of which are summarized at [209] to [231] of the judgment consequently the prisoner has been denied natural justice and a fair hearing in breach of ss 37(3) and 59 of the Constitution.

218. Ground 71 argues that the trial judge failed to address and give any consideration to the appellant’s legal arguments. This is a frivolous argument. The judgment on verdict was, at 99 pages and 415 numbered paragraphs plus the 15-page annexure (table 1), very lengthy. Substantial parts of it (for example, paragraphs 136 to 231 and 314 to 352) were devoted to carefully setting out the appellant’s submissions and the Court’s consideration and determination of them. The judgment on verdict was preceded by eight interlocutory judgments in which the trial judge carefully set out and considered the appellant’s submissions on his numerous applications.

219. It is incorrect to say that the appellant’s legal arguments were not addressed and considered. There was no denial of the appellant's rights to a fair hearing and natural justice under ss 37(3) and 59 of the Constitution. We dismiss ground of appeal 71.

CONCLUSION

220. We have dismissed all 71 grounds of the appeal. We are not persuaded that the verdict is unsafe or unsatisfactory or that the judgment of the National Court should be set aside or that there was a material irregularity in the course of the trial. We apply s 23 of the Supreme Court Act, which relevantly provides:

(1) Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that—

(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b) the judgement of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal.

(2) Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred.

221. We therefore dismiss the appeal.

ORDER

(1) The appeal is dismissed.

(2) The verdict of the National Court is affirmed.

________________________________________________________________
GP Lawyers: Lawyers for the Appellant
Public Prosecutor: Lawyer for the Respondent

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