SC2792

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCRA NO 20 OF 2023

PAUL PARAKA

V

THE STATE

WAIGANI: CANNINGS J, MANUHU J, YAGI J

27, 31 OCTOBER 2025 

SUPREME COURT – dismissal of appeal against conviction – application to set aside dismissal of appeal on ground of apprehended bias on the part of two members of the Court – Supreme Court Act, s 2(1): a Judge shall not sit as a member of the Court if he has previously adjudicated on the merits of the case – whether application was filed within time – Supreme Court Rules, Order 11 rule 32 – whether application was an abuse of process.

After the appellant’s appeal against conviction was dismissed by the Supreme Court on 30 October 2024, he filed an application on 16 October 2025 to the Supreme Court to set aside its dismissal of the appeal on grounds of actual and perceived bias on the part of two members of the Court. He argued that he had been denied natural justice under s 59 of the Constitution and denied the full protection of the law under s 37 of the Constitution. He argued that the president of the Court had prejudged the merits of the appeal in four judicial decisions made prior to the hearing of the appeal and was prohibited from being a member of the Court by s 2(1) of the Supreme Court Act: “a Judge shall not sit as a member of the Supreme Court if he has previously adjudicated … on the merits of the case.” He argued that another member of the Court had made prejudicial comments against him in separate proceedings involving the appellant in 2013 (11 years prior to the hearing of the appeal). The respondent, the State, argued that the application ought to be summarily dismissed as it was filed late, contrary to Order 11 rule 32 of the Supreme Court Rules: “An application of any nature made after disposal of a proceeding, shall be filed and served in writing within 21 days of the order disposing of the proceeding.” The respondent also argued that the application was an abuse of process.

Held: 

(1)	The amended application was filed late. The appeal was disposed of on 30 October 2024. The application to set aside was required by Order 11 rule 32 of the Supreme Court Rules to be filed and served by 20 November 2024. It was not filed and served until 16 October 2025. The failure to meet the 21-day requirement could not be excused under ss 57(3) or 155(4) of the Constitution as it was a mandatory requirement giving effect to the principle of finality in litigation. For that reason alone, the application was dismissed. 

(2)	It is an abuse of process for an appellant to allow his appeal to be heard and determined, and then to claim, after dismissal of the appeal, that members of the Court were biased due to events and circumstances that pre-dated the hearing of the appeal and were or reasonably expected to be within the knowledge of the appellant. The amended application filed 16 October 2025 was an abuse of process as it was raising grounds of objection to the composition of the Court that could have been, but were not, raised prior to the hearing of the appeal.

(3)	Further, the alleged grounds of actual or perceived bias had no merit. None of the four previous judicial decisions of the president amounted to prejudgment of the merits of the appeal. There was no reliable evidence of comments of another member of the Court alleged to be prejudicial to the appellant, which were alleged to be made in a separate case 11 years prior to the hearing of the appeal and had no connection with the issues for determination in the appeal.

(4)	The amended application filed 16 October 2025 was accordingly refused. 

Cases cited
Application by Paraka (2023) SC2455
Paraka v Gauli (2019) N7975
Paraka v The State (2023) SC2439
Paraka v The State (2024) SC2648
The State v Kasiman (2023) N10560
The State v Paraka (2022) N9568
The State v Paraka (2023) N10273

Counsel
P Paraka, the appellant, in person 
H Roalakona for the respondent 

1.     BY THE COURT: The appellant, Paul Paraka, was convicted on 26 May 2023 in the National Court of five counts of misappropriation under s 383A of the Criminal Code (The State v Paraka (2023) N10273). His appeal against conviction was dismissed by the Supreme Court on 30 October 2024 (Paraka v The State (2024) SC2648).

2.     He now applies to the Supreme Court by an amended application filed on 16 October 2025:

•	to set aside its dismissal of the appeal on grounds of actual and perceived bias on the part of two members of the Court;

•	to have his appeal heard afresh by a differently constituted Court;

•	for bail, pending the rehearing of his appeal. 

3.     He argues that he was denied natural justice under s 59 of the Constitution and denied the full protection of the law under s 37 of the Constitution. 

4.     He argues that the president of the Court, Cannings J prejudged the merits of the appeal in four judicial decisions made prior to the hearing of the appeal and was prohibited from being a member of the Court by s 2(1) of the Supreme Court Act: “a Judge shall not sit as a member of the Supreme Court if he has previously adjudicated … on the merits of the case.” 

5.     He argues that another member of the Court, Manuhu J, made prejudicial comments against the appellant in separate proceedings involving the appellant in 2013 (11 years prior to the hearing of the appeal). 

6.     The respondent, the State, argues that the application ought to be summarily dismissed as it was filed late, contrary to Order 11 rule 32 of the Supreme Court Rules, which states: 

An application of any nature made after disposal of a proceeding, shall be filed and served in writing within 21 days of the order disposing of the proceeding. 

7.     The respondent also argues that the application is an abuse of process.

We will deal first with the respondent’s preliminary arguments.

HAS THE AMENDED APPLICATION BEEN FILED LATE?

8.     Clearly the amended application was filed late. The appeal was disposed of on 30 October 2024. The application to set aside the judgment dismissing the appeal was required by Order 11 rule 32 of the Supreme Court Rules to be filed and served within 21 days after dismissal of the appeal, ie by 20 November 2024. It was not filed and served until 16 October 2025. 

9.     The appellant asked us to excuse his failure to comply with the 21-day requirement as he has been very sick and is suffering a serious medical condition that has required admission to hospital for long periods. He submitted that ss 57(3) and 155(4) of the Constitution allow the Court to dispense with the 21-day requirement in the circumstances of this case.

10.     Section 57(3) states:

A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

11.    Section 155(4) states:

The Higher Courts of Justice have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

12.     We reject that submission. Order 11 rule 32(1) of the Supreme Court Rules imposes a mandatory requirement that gives effect to the principle of finality in litigation. 

13.     The Supreme Court is the final court of appeal in Papua New Guinea. When it gives a final decision on an appeal that is the end of the matter unless and until an aggrieved person makes an application to set aside or vary the decision and has that application determined in their favour. 

14.     The window of opportunity to bring such applications to the Court is very narrow. The application must be filed and served “within 21 days of the order disposing of the proceeding”. Neither s 57(3) nor s 155(4) of the Constitution can be invoked to overcome that very specific and important time limit. 

15.     Further, we note that the appellant has filed several other applications regarding his detention in custody in the period after the date of dismissal of his appeal, 30 October 2024. No good reason exists to excuse the failure to make the amended application in a timely manner.

16.     For those reasons alone, the amended application filed 16 October 2025, having been filed more than ten months after the date of expiry for making such an application must be dismissed. 

IS THE AMENDED APPLICATION AN ABUSE OF PROCESS?

17.     It is significant that the appellant took no objection, prior to the hearing of the appeal, to the composition of the Court that heard his appeal. The respondent points out that there were several adjournments of the hearing prior to the actual hearing of the appeal on 24 September 2024:

•	The appeal was first listed for hearing on 26 June 2024, when it was proposed that Manuhu J would be a member of the Court.

•	Next the appeal was listed for hearing on 31 July 20224 when both Cannings J and Manuhu J were to be members of the Court.

•	Then the appeal was listed for hearing on 29 August 2024 when it was proposed that Cannings J would be a member of the Court.

•	Then the appeal was heard on 24 September 2024 by the Court consisting of Cannings J, Manuhu J and Yagi J. 

18.     On none of those occasions did the appellant object to his appeal being heard by Cannings J or Manuhu J. Ample opportunity was given to him to object to Cannings J and/or Manuhu J sitting on the appeal. He said nothing.

19.     It defies commons sense for him to now claim, after getting the result of his appeal that he is aggrieved by, that two of the Judges ought not to have sat on his appeal on grounds of bias. All the grounds on which he argues that two of the Judges were biassed against him existed and were well known to him, or at least would reasonably be expected to have been within his knowledge, well before the hearing of the appeal. 

20.     It is an abuse of process for an appellant to allow his appeal to be heard and determined, and then to claim, after dismissal of the appeal, that members of the Court were biased against him due to events and circumstances that pre-dated the hearing of the appeal and were or reasonably expected to be within his knowledge. 

21.     We uphold the respondent’s submission that the amended application filed 16 October 2025 is an abuse of process. It is raising grounds of objection to the composition of the Court that could have been raised prior to the hearing of the appeal, but which were not raised.

22.     The abuse of process committed by the appellant is another reason the amended application filed 16 October 2025 must be summarily dismissed. 

DO THE CLAIMS OF ACTUAL OR PERCEIVED BIAS HAVE MERIT?

23.      It is not necessary to address this issue as the amended application filed 16 October 2025 will be summarily dismissed. However, as we heard argument on the issue of bias, we comment on it briefly.

24.      As to perceived bias on the part of Cannings J, the appellant refers to four decisions of his Honour that allegedly involved adjudication on the merits of the appeal, and which required that his Honour be disqualified under s 2(1) of the Supreme Court Act from sitting on the appeal.

25.     First, Paraka v Gauli (2019) N7975. This was an application by the appellant for enforcement of human rights in relation to the decision of the Public Prosecutor to exercise the power under s 526 of the Criminal Code to issue an indictment containing apparently some charges of misappropriation that were the subject of the indictment on which he was convicted in the criminal trial, and which was the subject of the appeal that was dismissed on 30 October 2024. We consider that though there is some overlap between the issues in that National Court case and the appeal that was dismissed by this Court, there was no adjudication at all by Cannings J on the merits of the appeal. We note that the decision in N7975 was given on 30 August 2019, well before the commencement of the trial in which the appellant was convicted. 

26.     No reason exists for Cannings J being disqualified by reason of the decision in N7975 and no perception of bias in the mind of any reasonable person would arise by reason of knowledge of that decision.

27.     Secondly, Paraka v The State (2023) SC2439. This was an application by the appellant, made after his conviction, for a stay of the verdict of the National Court, pending the appeal against conviction. Cannings J refused the application on the ground that there was no obvious or patent error in the record of the National Court to show that the National Court had exceeded its jurisdiction in convicting the appellant. The decision to refuse the stay application did not involve an adjudication on the merits of the appeal in the sense intended by s 2(1) of the Supreme Court Act. Section 2(1) must be read in the context of s 2(2), which states:

A Judge is not precluded from sitting as a member of the Supreme Court in cases where he has given an interlocutory judgment only, or any other judgment not going to the merits of the case.

28.     The decision in SC2439 was an interlocutory judgment only. It did not preclude Cannings J from sitting on the appeal. It involved no determination of the merits of the appeal. 

29.     No reason exists for Cannings J being disqualified by reason of the decision in SC2439 and no perception of bias in the mind of any reasonable person would arise by reason of that decision.

30.     Thirdly, Application by Paraka (2023) SC2455. This was an application for enforcement of constitutional rights, seeking a stay of the verdict of the National Court. Cannings J refused the application on the grounds that there were no obvious or patent breaches of constitutional rights that went to the jurisdiction of the National Court that amounted to extreme or exceptional circumstances warranting a stay of the verdict.

31.     The decision in SC2455 was an interlocutory judgment only. It did not preclude Cannings J from sitting on the appeal. It involved no determination of the merits of the appeal. 

32.    No reason exists for Cannings J being disqualified by reason of the decision in SC2455 and no perception of bias in the mind of any reasonable person would arise by reason of knowledge of that decision.

33.     Finally, The State v Kasiman (2023) N10560. This was a ruling on an objection to admission into evidence of documents obtained unlawfully by police in a criminal trial against six accused persons in which Cannings J was the trial judge. The decision of the trial judge in the appellant’s case, in which a similar sort of objection was ruled on, The State v Paraka (2022) N9568, was cited with approval by Cannings J. 

34.     The appellant now argues that this shows that Cannings J prejudged the merits of his case, which included grounds of appeal that challenged the ruling in N9568. We reject that argument. Cannings J’s decision in N10560 was given on 6 November 2023, ten months before the hearing of the appellant’s appeal. It was a ruling given in an entirely separate case in a different Court. It involved no prejudgment or adjudication on the merits of the appellant’s case.

35.     No reason exists for Cannings J being disqualified by reason of the decision in N10560 and no perception of bias in the mind of any reasonable person would arise by reason of knowledge of that decision.

36.    We therefore reject all submissions of the appellant regarding alleged bias on the part of Cannings J.

37.     As to perceived bias on the part of Manuhu J, the appellant has given evidence of comments attributed to his Honour that are reported in a newspaper article in 2013 that the appellant argues are prejudicial to him, and show that his Honour was biased against him when the appeal was heard in 2024.

38.     This is a frivolous argument. It is not based on reliable evidence. If this argument were to be seriously considered, a transcript of the National Court proceedings in which the Judge allegedly made the comments would need to be presented. 

39.     Even if the comments were made as reported, they were not prejudicial to the appellant, they were made in the context of an entirely separate case and they were made 11 years before the hearing of the appeal. The comments had no connection with the issues for determination in the appeal.

40.     No reasonable person with knowledge of the comments would have any reason to believe that his Honour was not hearing the appeal in 2024 with an unprejudiced and impartial mind. 

41.    We therefore reject all submissions of the appellant regarding alleged bias on the part of Manuhu J.

42.     If we had not summarily dismissed the amended application filed 16 October 2025 for the reasons given earlier, we would have still dismissed the application as the appellant’s claims of actual or perceived bias on the part of two members of the Court have no merit.

CONCLUSION

43.     We refuse the appellant’s application for three reasons. First, it was filed well out of time. Secondly, it is an abuse of process. Thirdly, it has no merit. 

44.     It follows that all the orders he seeks in the application, including an order setting aside the dismissal of the appeal, an order that his appeal be reheard and an order that he be granted bail, will be refused.

ORDER 

45.     All relief sought by the appellant in the amended application filed 16 October 2025 is refused.
_____________________________________________________________
Lawyer for the respondent:	Public Prosecutor