State v Paraka [2021] PGNC 222; N8938 (13 July 2021)

N8938

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 118 OF 2019

THE STATE

V

PAUL PARAKA

Waigani: Berrigan J
2021: 9^th and 13^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – QUASH & PERMANENT STAY OF INDICTMENT – S 528, 531 of the Criminal Code considered – Application dismissed.

Cases Cited:
Papua New Guinea Cases

The State v Paul Paraka (Decision on Motions to Quash/Permanently Stay (No 2)) (2021) N8807.
Wartoto v The State (2015) SC1411
State v Wohuinangu (1991) N966
In re Namah (2018) N7194
Thompson v Kalaut (2011) N4265
Regina v Walsh [1971-72] PNGLR 293

Overseas Cases

R v Crawley [2014] EWCA Crim 1028
Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23
R v Morris (1933) 24 Cr App R 105
R v Tomlin [1954] 2 QB

References Cited

Sections 37(1), 155 of the Constitution
Section 528, 558, 531 Criminal Code

Counsel

Ms. H. Roalakona with Ms. S Mosoro, for the State
Mr. P. Paraka in person

DECISION ON MOTION No. 1 of 2021: TO QUASH/PERMANENTLY STAY INDICTMENT

13^th July, 2021

1. BERRIGAN J: On 23 April 2021 I dismissed Mr Paraka’s motions to quash and permanently stay the indictment presented by the Public Prosecutor pursuant to s 526 on 6 December 2019: The State v Paul Paraka (Decision on Motions to Quash/Permanently Stay (No 2)) (2021) N8807.
   
2. The history of the matter is summarised at [2] and [230] of that decision.
   
3. In dismissing the accused’s motions I made several orders:
   

“1. Paragraphs 6, 7, 8 and 10 of the accused’s Further Amended Notice of Motion No. 1 is dismissed.

2. The accused’s Further Notice of Motion No. 2 is dismissed.

3. The State shall amend the indictment to reflect five counts of misappropriation on an annual basis.

4. The State shall serve the amended indictment on the accused by 7 May 2021.

5. The State shall serve the additional statements upon which it intends to rely in the place of John Maddison, Dr Lawrence Kalinoe, and Joseph Supamop on the accused by 7 May 2021.

6. The accused shall file and serve his pre-trial review statement by 7 May 2021.

7. The matter will be fixed for trial at the first available date.”

4. The accused asked for two weeks to retain a lawyer and the matter was adjourned to 7 May 2021 to confirm legal representation and fix a trial date.
   
5. On 7 May 2021 the State informed the Court that it had served the amended indictment on the accused. The accused handed up a draft pre-trial review statement. The accused complained that the Public Prosecutor had failed to serve a signed copy of the amended indictment. I expressed the view that it appeared the Public Prosecutor had complied with the order and the State Prosecutor appearing on that day indicated that a signed copy would also be made available. The accused indicated that he intended to file two motions, one to have me recuse myself and another to quash the amended indictment. I adjourned the matter to 14 May 2021 to deal with both matters.
   
6. On 14 May 2021 the accused informed the Court that he had filed four motions including: one for the production of documents in the trial proper; one to quash/permanently stay the indictment; one to have me disqualify myself; and one seeking transcript in relation to the latter. The accused indicated that he needed a two-week adjournment on medical grounds, supported by evidence, and the matter was adjourned to 4 June 2021.
   
7. On 8 June 2021 Mr Paraka sought a two-month adjournment of the recusal and quash motions on medical grounds, supported by affidavit material, and to attend customary obligations following a death. The application was refused for being unreasonable. The medical report confirmed that the accused’s medical condition is exacerbated by stress. I appreciate that the accused’s health condition is serious, and that these proceedings must be stressful. Mr Paraka has, however, chosen to represent himself. There is a significant difference between an accused being fit to stand trial, and an accused being fit to conduct his own trial. The progression of this matter cannot be unduly impeded because Mr Paraka has chosen to represent himself. The right to defend oneself under s 37(4)(e) of the Constitution is not unlimited.
   
8. I indicated that I would need to deal with the recusal application first and that I would grant one month’s adjournment for medical purposes. I indicated that Mr Paraka should consider retaining legal representation. The matter was adjourned to 9 July 2021.
   
9. On 9 July 2021 the accused withdrew his application for me to recuse myself on the basis of apprehended bias. He moved an amended motion to quash/stay the indictment, filed 6 July 2007.
   
10. The motion is supported by two affidavits. Other than the transcript of proceedings, it has not been necessary to refer to the material in the affidavits, some of which appears to contain materials from the brief, and correspondence with the State. I make it clear again, as I have throughout the proceedings, that unless I have referred to the material in my findings it has not been necessary to refer to it in my decision making.
    

BREACH OF COURT ORDER

11. The accused contends that the State failed to comply with my orders of 23 April 2021 to serve the amended indictment by 7 May 2021, that the amended indictment is therefore a nullity and that the proceedings should be permanently stayed pursuant to s 57(3) of the Constitution.
    
12. As above, an unsigned amended indictment was served on the accused on 6 May 2021. A signed copy was served on 11 May 2021.
    
13. Mr Paraka took objection to being asked to identify the prejudice he suffers in his defence as a result of the fact that an unsigned amended indictment was served on 6 May 2021, and a signed copy of the same indictment was served four days later on 11 May 2021. My intention was not to curtail his argument. On the contrary I wished to give him an opportunity to address the issue because without prejudice, I am unable to see any basis on which to permanently stay the proceedings pursuant to ss 23 or 57(3) of the Constitution.
    
14. The accused concedes that there is no prejudice but argues that prejudice is not required and that the proceedings must automatically be stayed for failure to comply with the court order.
    
15. I set out in detail the principles governing permanent stay in The State v Paul Paraka (Decision on Motions to Quash/Permanently Stay (No 2)) (2021) N8807. In brief, there are two broad categories of cases in which the Court has the power to permanently stay criminal proceedings for abuse of process. The first is where the court concludes that it is not possible for the accused to obtain a fair trial. The second is where it would be unfair to try the accused, or where a stay is necessary to protect the integrity of the criminal justice system: R v Crawley [2014] EWCA Crim 1028; see also Wartoto v The State (2015) SC1411; Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23.
    
16. To permanently stay criminal proceedings is an extreme remedy, only to be exercised in the most exceptional circumstances, as a last resort. There is substantial public interest in the court exercising its jurisdiction to determine whether a person charged with a criminal offence is guilty. A permanent stay interferes with that public interest and is equivalent to conferring immunity from prosecution: see Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23; State v Wohuinangu (1991) N966; In re Namah (2018) N7194; Crawley (supra); Wartoto (supra); Thompson v Kalaut (2011) N4265.
    
17. In the first category it is necessary for the accused to establish not only that there has been an abuse but that he is prejudiced in his defence such that a fair trial is not possible, bearing in mind the power of the court to impose lesser remedies or directions to control the proceedings, for instance through the exclusion of evidence, the issuance of warnings, or the granting of adjournments: Jago; Wohuinangu; Crawley.
    
18. The accused relies on s 155 of the Constitution requiring compliance with orders. In oral submissions he referred to his right to protection of the law under s 37(1) of the Constitution.
    
19. The proceedings concern serious allegations. There is substantial public interest in having them heard and determined. The Public Prosecutor has substantively complied with my order of 23 April 2021 by serving an unsigned copy of the amended indictment within time, followed by a signed copy a few days later. There is no breach of s 155 of the Constitution. Furthermore, the accused has failed to demonstrate any prejudice to his defence by the fact that the amended indictment upon which the State intends to rely was served on 11 May and not 7 May 2021, which warrants an order under s 57(3) permanently staying these proceedings. Such an order would not be “necessary or appropriate” in all the circumstances. Furthermore, the accused has failed to show that it would be unfair to try him, or that a stay is necessary to protect the integrity of the criminal justice system. For similar reasons, I refuse to stay the proceedings pursuant to s 23 of the Constitution.
    

FORM OF INDICTMENT AND JOINDER OF CHARGES/DEFECTS

20. The indictment presented on 20 December 2019 contained one count alleging that between 1^st February 2007 and 31 December 2011 the accused dishonestly applied to his own use and the use of others the sum of K162,860,194.96 the property of the Independent State of Papua New Guinea.
    
21. In seeking to quash/stay the original indictment the accused submitted that he is entitled to defend each allegation on a yearly basis. It was prejudicial and embarrassing for the allegations to be lumped together in a five year period, that is fraught with uncertainty, and therefore the indictment was prejudicial, an embarrassment, defective and ought to be quashed.
    
22. I dismissed those arguments for the reasons set out at [257] to [273] of my decision in The State v Paul Paraka (Decision on Motions to Quash/Permanently Stay (No 2)) (2021) N8807 but exercised my powers under s 558(2)(b) of the Criminal Code to order the indictment to be amended to reflect five counts of misappropriation on an annual basis on the basis that the State has itself broken the amounts down according to a yearly basis in its alleged facts and the accused has indicated that this approach would assist him.
    
23. To my mind that is the end of the matter. The accused is not now permitted to raise further arguments seeking to quash the indictment. It is an abuse of process. For the reasons set out below the arguments are without merit in any event.
    
24. The accused contends that the amended indictment contains 8 “Formal Defects” for which it should be quashed pursuant to s 558 of the Criminal Code. As he made clear during submissions some of these grounds raise the same objections.
    
25. Section 558 of the Criminal Code provides (emphasis mine):
    

MOTION TO QUASH INDICTMENT.

(1) The accused person may, before pleading, apply to the court to quash the indictment on the ground that–

(a) it is calculated to prejudice or embarrass him in his defence to the charge; or

(b) it is formally defective.

(2) On a motion under Subsection (1), the court may–

(a) quash the indictment; or

(b) order it to be amended in such manner as the court thinks just; or

(c) refuse the motion.

26. The amended indictment contains five counts alleging that the accused:
    

Count 1: “between the 24^th day of April 2007 and the 31^st day of December 2007 at Port Moresby, National Capital District in PNG dishonestly applied to his own use and to the use of others the sum of Thirty Million and Three Hundred Thousand Kina (K30,300,000) the property of the Independent State of Papua New Guinea.”

Count 2: “between the 28^th day of February 2008 and the 31^st day of December 2008 at Port Moresby, National Capital District in PNG dishonestly applied to his own use and to the use of others the sum of Thirty Million and Fifty-Four Thousand Three Hundred and Twelve Kina and Sixty Eight Toea (K30,054,312.68) the property of the Independent State of Papua New Guinea.”

Count 3: “between the 11^th day of March 2009 and the 18^th day of August 2009 at Port Moresby, National Capital District in PNG dishonestly applied to his own use and to the use of others the sum of Fourteen Million, Three Hundred and Sixty Thousand Kina (K14,360,671.28) the property of the Independent State of Papua New Guinea.”

Count 4: “between the 20^th day of January 2010 and the 29^th day of November 2010 at Port Moresby, National Capital District in PNG dishonestly applied to his own use and to the use of others the sum of Thirty Nine Million, Eight Hundred and Eight Thousand Six Hundred and Ten Kina (K39,808,610) the property of the Independent State of Papua New Guinea.”

Count 5: “between the 14^th day of January 2011 and the 29^th day of November 2011 at Port Moresby, National Capital District in PNG dishonestly applied to his own use and to the use of others the sum of Fifty Million Two Hundred and Sixteen Thousand and Six Hundred Kina (K50,216,600) the property of the Independent State of Papua New Guinea.”

Formal Defect Nos 6 and 7: S 528 of the Criminal Code

27. The accused contends that each of the counts in the indictment fail to comply with s 528(1)(a) and (b) of the Criminal Code because it fails to specify the manner and particulars of the offence.
    
28. Section 528 provides:
    

FORM OF INDICTMENT.

(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.

(2) Subject to Subsections (3) and (4), if any circumstance of aggravation is intended to be relied on it must be charged in the indictment.

(3) Where the circumstance of aggravation intended to be relied on is a previous conviction, the conviction shall not be charged in the indictment, but written notice of an intention to rely on it as circumstance of aggravation shall be served on the accused person or his lawyer, before the commencement of the trial.

(4) Where a written notice has been served in accordance with Subsection (3) and the accused person has been convicted–

(a) of the offence charged in the indictment; or

(b) of any other offence of which he might be convicted under the indictment,

the prosecution may, after the conviction of the accused person but before sentence is imposed, allege and prove the previous conviction.

(5) On proof of the previous conviction the court may–

(a) convict the accused person of the aggravated offence as if the previous conviction had been charged in the indictment; and

(b) substitute a conviction for the aggravated offence for the conviction already recorded in the trial,

and the accused person is liable to punishment accordingly.

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

(7) The place of trial shall be named in the margin of the indictment.

29. On their face each of the five counts contain the matters required at s528(a) and (b)(i)(ii) and (iii) of the Criminal Code in such a manner and with such particulars as is necessary to inform the accused of the offence with which he is charged, including the time and place of the alleged offences, the person aggrieved, namely the State, and the property in question.
    
30. It is abundantly clear, and there is no dispute, that the charges are misappropriation charges brought pursuant to 383A(1)(a)(2)(d) of the Criminal Code. The counts contain each of the elements of the offence of misappropriation and are drafted in compliance with the Criminal Practice Rules, 1983.
    
31. The accused further submits that the indictment should contain the particulars set out at [4] to [6] of my decision of N8608. I think this is a typographical error and the intended reference is N8807.
    
32. The matters set out at those paragraphs are the summary or brief facts alleged by the State. They should not be contained in the indictment. The indictment must comply with s 528, which it does for the reasons set out above.
    
33. The counts are not formally defective for failing to comply with s 528 of the Criminal Code. Nor is the indictment calculated to prejudice or embarrass the accused in his defence to the charge for the purpose of s 558 of the Criminal Code. These grounds are dismissed.
    

Formal Defect Nos 1, 2, 4, 5 and 8: S 531 of the Criminal Code

34. The accused submits that the amended indictment is in breach of s 531 of the Criminal Code, which provides (emphasis mine):
    

JOINDER OF CHARGES: GENERAL RULES.

(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.

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.
    

Formal Defect No 3: General Deficiency

44. The accused submits that the amended indictment fails to plead a general deficiency in any of the five counts.
    
45. As a general rule, a general deficiency charge is appropriate where it is not possible to trace the individual items of property and not where it is possible to trace the movement of property: R v Morris (1933) 24 Cr App R 105; R v Tomlin [1954] 2 QB.
    
46. The term “general deficiency” is an expression in money terms of the difference between the amount which at the end of the period selected for accounting a person or corporation should possess in cash or deposits or investments representing cash and the amount he or it actually possesses. Such a difference is generally to be discovered by an examination of the books of account or entries kept or made in relation to receipts and disbursements: Regina v Walsh [1971-72] PNGLR 293. The difficulties facing the Crown in that case with respect to stealing and the equivalent of s 532(2), (3), (4), and (5) have no application here given we are dealing with misappropriation, and my reasons above.
    
47. The State submits that it is not proceeding on the basis of a general deficiency. That appears clear from the alleged facts. The State is alleging the misappropriation of certain property belonging to the State traced through various bank accounts including bank accounts controlled by the accused.
    
48. This ground is dismissed.
    

CONCLUSION

49. In conclusion, the accused’s motion to quash and/or permanently stay the indictment is dismissed.
    

ORDERS

50. I make the following orders:
    
    1. The accused’s Amended Notice of Motion No. 1 of 2021 is dismissed.
    2. The matter will be fixed for trial at the first available date.

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