Application to Enforce Constitutional Rights by Paul Paraka [2023] PGSC 101; SC2455 (1 September 2023)

SC2455

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP NO 3 OF 2023

APPLICATION TO ENFORCE CONSTITUTIONAL RIGHTS
BY PAUL PARAKA

Waigani: Cannings J
2023: 31^st August, 1^st September

SUPREME COURT – practice and procedure – application for enforcement of constitutional rights – application for stay of verdict of National Court pending determination of substantive application for enforcement of constitutional rights – Constitution, s 57 (enforcement of guaranteed rights and freedoms) – whether Court has jurisdiction to grant stay – whether power to grant stay can be exercised by single Judge of Supreme Court – whether stay of verdict should be granted.

The applicant was convicted in the National Court of the crime of misappropriation under s 383A of the Criminal Code, and granted bail pending sentence. He appealed to the Supreme Court against his conviction. He applied, prior to the hearing of his appeal and prior to his sentencing hearing in the National Court, within that appeal proceeding, for a stay of the verdict of the National Court. That stay application was refused. He then sought the same relief, a stay of the verdict of the National Court, in separate proceedings, an application for enforcement of constitutional rights, pending the hearing and determination of his substantive application for enforcement of constitutional rights.

Held:

(1) A single Judge of the Supreme Court has jurisdiction under Order 3 rule 2(b) of the Supreme Court Rules to make “an interim order to prevent prejudice to the claims of the parties”, and this includes an interim order to stay National Court proceedings, pending determination of an application for enforcement of constitutional rights.

(2) The power to grant a stay of criminal proceedings in the National Court should be exercised sparingly and only where it is in the interests of justice to grant a stay, in extreme and exceptional circumstances.

(3) If an applicant could show that there were obvious or patent breaches of constitutional rights evident in the record of the National Court that went to the jurisdiction of the National Court to make the order that it did, and his application for enforcement of constitutional rights stood a high chance of success, those might be extreme and exceptional circumstances warranting a stay of verdict, before sentence, pending hearing and determination of the application for enforcement of constitutional rights.

(4) However, the applicant failed to demonstrate any obvious or patent breaches of constitutional rights in the record of the National Court and failed to show that his application for enforcement of constitutional rights had a strong chance of success.

(5) The grounds put forward by the applicant in support of his stay application are grounds of appeal included in his notice of appeal against conviction. He is entitled to argue those grounds at the hearing of the appeal. The application for a stay of verdict was refused.

Cases Cited

The following cases are cited in the judgment:

Commander of Beon Correctional Institution v Mal (2022) SC2186
Kaluwin v Haiveta (2023) SC2381
Leahy v Kaluwin (2014) N5813
Maladina v The State (2015) SC1572
McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279
The State v Paraka (2023) N10273
The State v Siune (2021) SC2070
The State v Tamate (2021) SC2132
Wartoto v The State [2015] 1 PNGLR 26

Counsel

P Paraka, the applicant, in person
R Uware, for the First Respondent, the State
H Roalakona & S Mosoro, for the Second Respondent, the Public Prosecutor

1^st September 2023

1. CANNINGS J: The applicant, 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). He has always been on bail and was granted bail after conviction, pending sentence.

2. He lodged an appeal against conviction in the Supreme Court on 4 July 2023. He applied, within the appeal proceedings, for a stay of the verdict of the National Court before he was sentenced so that his appeal against conviction could be heard and determined. I heard that stay application, which was made under ss 5(1)(a) and (b) and 19 of the Supreme Court Act, on 15 August 2023. I refused it on 16 August 2023 (Paraka v The State (2023) SC2439).

3. Before me now is a similar application, to stay the verdict of the National Court. What makes it different is that the stay application is not made in the appeal proceeding, but in a separate Supreme Court proceeding: an application for enforcement of constitutional rights. Note that the term “constitutional rights” is used in Order 6 of the Supreme Court Rules 2012 to describe proceedings of this nature. Constitutional rights means the same thing as “human rights” which is the terminology used in Order 23 of the National Court Rules 1983. In this judgment, I will use the terminology of the Supreme Court Rules, constitutional rights, rather than human rights.

4. In this proceeding, SCAPP No 3 of 2023, which is an application for enforcement of constitutional rights within the original jurisdiction of the Supreme Court under s 57 of the Constitution, the applicant is claiming that in the National Court:

• he was denied his constitutional right to a fair trial by an independent and impartial judge and thereby denied the full protection of the law under s 37 of the Constitution; and
  
• he was denied natural justice to which he is entitled under s 59 of the Constitution.
  

5. He seeks, in this proceeding, a range of remedies, the most significant of which are pleaded in the amended application to enforce constitutional rights, filed 14 July 2023, at paragraph 3.43(e), (f) and (g):

• a declaration that his trial in the National Court was a mistrial;
  
• a permanent stay of the indictment; and
  
• dismissal of all charges against him.
  

6. It is in support of his application for enforcement of constitutional rights, that the applicant makes the present further amended application for stay, filed 25 July 2023.

OBSERVATIONS

7. I have heard the application and will determine it on its merits but before going further I make two observations.

8. First, I am surprised not to hear the respondents (the State, first respondent, and the Public Prosecutor, second respondent) argue in a formal application that the present proceeding, or at least the present application, is an abuse of process. I heard and determined a very similar application for stay of the verdict of the National Court two weeks ago in the context of the appeal against conviction, SCRA No 22 of 2023 (Paraka v The State (2023) SC2439).

9. The argument was surely there to be made that the applicant is engaging in a multiplicity of proceedings, and applications, to achieve the same result: to stay the National Court criminal proceedings. Having failed at his first attempt to get those proceedings stayed, he seems to be having a second bite at the cherry in the present proceeding. However, I take that issue no further, for now. It is an argument made in submissions, but there was no application for summary dismissal of the proceedings, which could have been made under Order 13 rule 16(1) of the Supreme Court Rules. I did not raise the issue, so it would not be fair to consider taking the drastic step of dismissing these proceedings as an abuse of process without hearing argument on it.

10. Secondly, the commencement of this proceeding, which is an application for enforcement of constitutional rights aimed at directly affecting continuation of a part-heard criminal proceeding, is by its nature contentious and somewhat controversial given propagation of the opinion in many judgments of the Supreme Court in recent years that enforcement of constitutional rights with a view to staying or affecting criminal proceedings in the National Court is inappropriate. Not to be encouraged. Not a good thing. Bordering on an abuse of process.

11. That is a broad-brushed but I would say accurate depiction of the opinion of several Judges, particularly Kandakasi DCJ, in cases such as Wartoto v The State [2015] 1 PNGLR 26 (which contained obiter disapproving of enforcement of human rights to permanently stay a criminal proceeding in Leahy v Kaluwin (2014) N5813), The State v Siune (2021) SC2070, The State v Tamate (2021) SC2132, Commander of Beon Correctional Institution v Mal (2022) SC2186 and recently Kaluwin v Haiveta (2023) SC2381.

12. I am very conscious of the criticism of the National Court’s enforcement of human rights in those proceeding as I was the primary judge in each of those cases.

13. As to this case, I am a little surprised that the respondents did not attempt to nip the present proceeding in the bud by applying for summary dismissal on the ground of abuse of process due to its reliance on constitutional rights. I am certainly not going to go down that path. The issue was not raised by counsel, so I say no more.

ARGUMENTS

14. The applicant submits that in the National Court his constitutional right to a fair trial before an independent and impartial judge was breached and that his right to natural justice and procedural fairness were not afforded to him. He relies on alleged breaches of ss 37 (protection of the law) and 59 (principles of natural justice) of the Constitution to argue for the primary remedies being sought.

15. He claims that the trial judge was biased against him, as is evident from the number of times his interlocutory applications for various orders in the trial calculated to protect his constitutional rights were routinely refused. He claims that there was no evidence against him, explaining why he exercised his right to remain silent, yet the trial judge proceeded to convict him based on evidence that the trial judge introduced into the trial without giving him a right to be heard. He claims that the trial judge annexed to the judgment a table of transactions that he had not seen before and on which he had no opportunity to comment. He was denied the right to cross-examine witnesses. He was entitled to an acquittal but instead he was convicted because of facts invented by the trial judge.

16. He submits that he has suffered from a travesty of justice; and he will only be exposed to further suffering and further breaches of constitutional rights if his application for a stay of the verdict is refused. He will be sentenced by a Judge who has exhibited bias against him. He submits that a stay is necessary in the interests of justice.

17. The respondents oppose the application for a stay of the National Court proceedings and argue that the applicant can argue all the grounds underlying the stay application in his appeal against conviction. The substantive proceedings are nothing more than an attempt to further delay the criminal process. It is an attempt to invoke the civil jurisdiction of the Supreme Court to interrupt a criminal process, something which should not be permitted, as stressed by the Supreme Court in Wartoto v The State [2015] 1 PNGLR 26 and Kaluwin v Haiveta (2023) SC2381.

ISSUES

18. The first question to address is whether the Supreme Court has power to grant a stay of the verdict of the National Court. Secondly, if it has the power, can it be exercised by a single Judge? Thirdly, in what circumstances should a stay be granted? Finally, should a stay be granted in this case?

1. DOES THE COURT HAVE JURISDICTION TO GRANT A STAY?
   

19. In my view the Supreme Court has the power to grant a stay of criminal proceedings in the National Court, in cases such as the present, being an application for enforcement of constitutional rights under s 57 of the Constitution, which states:

(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

(2) For the purposes of this section—

(a) the Law Officers of Papua New Guinea; and

(b) any other persons prescribed for the purpose by an Act of the Parliament; and

(c) any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,

have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.

(3) 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).

(4) Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).

(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.

(6) The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution.

20. Section 57(3) allows the Court to make such orders as are necessary or appropriate for the purposes of s 57. If the Court is persuaded that it is necessary or appropriate to grant a stay, such an order can be made under s 57(3).

2. CAN THE POWER TO GRANT A STAY BE EXERCISED BY A SINGLE JUDGE OF THE SUPREME COURT?
   

21. Yes, this can be done under Order 3 rule 2 of the Supreme Court Rules 2012, which provides:

Where any proceedings under Rule 1 [a matter or question within the original jurisdiction of the Supreme Court] are pending before the Court—

(a) a direction not involving a final decision upon the proceedings; or

(b) an interim order to prevent prejudice to the claims of the parties; or

(c) an order for security for costs; or

(d) an order in the nature of orders such as are referred to in s 8(1)(a), (b) and (c) of the Act—

may be made by a Judge.

22. The substantive matter, SCAPP 3 of 2023, is a matter within the original jurisdiction of the Supreme Court under s 57 of the Constitution, and the applicant seeks an interim order to prevent prejudice to his claims in that matter. I have jurisdiction as a single Judge of the Supreme Court to hear and determine the stay application. This is consistent with s 162 (jurisdiction of the Supreme Court), which provides:

(1) The jurisdiction of the Supreme Court is as set out in—

(a) Subdivision II.2.C (constitutional interpretation); and

(b) Subdivision III.3.D (enforcement); and

(c) Section 155 (the National Judicial System),

and otherwise as provided by this Constitution or any other law.

(2) In such cases as are provided for by or under an Act of the Parliament or the Rules of Court of the Supreme Court, the jurisdiction of the Supreme Court may be exercised by a single Judge of that Court, or by a number of Judges sitting together.

(3) The jurisdiction of the Supreme Court may be exercised by a Judge or Judges of that Court notwithstanding that it is being exercised at the same time by another such Judge or Judges.

(4) The jurisdiction of the Supreme Court may be exercised either in court or in chambers, as provided by or under an Act of the Parliament or the Rules of Court of the Supreme Court.

23. Section 162(2) is the pertinent provision. The Supreme Court Rules provide for a stay application of the sort I am determining. I am exercising the jurisdiction of the Supreme Court in accordance with Order 3 rule 2 of those Rules.

3. WHAT MATTERS SHOULD BE TAKEN INTO ACCOUNT WHEN DECIDING WHETHER TO GRANT A STAY?
   

24. The power to grant a stay of National Court criminal proceedings, in the form of an interim order to prevent prejudice to the claims of a party (in this case, the applicant) is a discretionary matter. No case has been brought to my attention where a stay application of the type before me has been granted or sought.

25. However, I turn for guidance to the stay application sought by the applicant in the context of his appeal against conviction, which was determined two weeks ago. In my ruling I referred to the decision of Injia CJ in Maladina v The State (2015) SC1572.

26. The appellant, Mr Maladina, was convicted in the National Court of various fraud-related offences and appealed against his conviction, and while his appeal was pending he applied for an order to stay the criminal proceedings in the National Court pending determination of the appeal against conviction. His stay application was heard by a single Judge of the Supreme Court, Injia CJ. His Honour ruled that, rather than considering all the multiple factors to be taken into account under the principles of the leading case, McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279, which were developed to deal with stay applications pertaining to civil proceedings in the National Court, it was preferable to take a holistic approach and consider the totality of the relevant factors and circumstances in order to dispense substantive justice in the circumstances of the particular case. His Honour concluded that the interests of justice favoured continuation of the trial to its logical conclusion, ie the passing of sentence.

27. I adopted the approach outlined in Maladina: the ultimate test is whether it is in the interests of justice to grant a stay of criminal proceedings, pending the appellant’s appeal against conviction. I adopt the same approach here. The question to ask is: is it in the interests of justice to grant a stay of the criminal proceedings, pending the applicant’s application for enforcement of constitutional rights?

28. I reinforce what I said in the applicant’s previous case. In ascertaining where the interests of justice lie, the power to grant a stay of criminal proceedings in the National Court should be exercised sparingly and only where it is in the interests of justice to grant a stay, in extreme and exceptional circumstances.

29. The reason I used the words “extreme and exceptional” is that there is an overwhelming public interest in ensuring that criminal proceedings are progressed efficiently and fairly in accordance with law and without interruption by collateral proceedings or applications that tend to delay or stall the National Court proceedings. Recognition of this fundamental public interest was at the centre of the reasoning of the five-Judge (Injia CJ, Sakora J, Kirriwom J, Kandakasi J, Davani J) Supreme Court decision in Wartoto v The State [2015] 1 PNGLR 26, a case which was an unsuccessful appeal by an accused person facing trial for misappropriation against a decision of the National Court, which had refused his application for a permanent stay of the National Court criminal proceedings.

30. If an applicant could show that there were obvious or patent breaches of constitutional rights evident in the record of the National Court that went to the jurisdiction of the National Court to make the order that it did, and that it appeared that his application for enforcement of constitutional rights stood a high chance of success, those might be extreme and exceptional circumstances warranting a stay of the verdict, before sentence, pending hearing and determination of the application for enforcement of constitutional rights.

4 SHOULD A STAY BE GRANTED IN THIS CASE?

31. The applicant has failed to convince me that there are any obvious or patent errors in the record of the National Court that show that this is an extreme and exceptional case that makes it in the interests of justice to grant a stay of the verdict of the National Court. There are no good and clear grounds for saying that the National Court exceeded its jurisdiction in finding the applicant guilty of misappropriation.

32. The applicant has failed to show that his application for enforcement of constitutional rights has a strong chance of success. Frankly, given judicial pronouncements in the series of Supreme Court cases referred to earlier (Wartoto, Siune, Tamate, Mal, Kaluwin) where the Court seems to have taken every conceivable opportunity to disapprove and squash the efforts of the National Court (particularly by Cannings J) to enforce constitutional rights in a criminal process context, the chances of the applicant succeeding, if his substantive application goes to trial in the Supreme Court (in which case the Court would apparently be constituted by at least three Judges in accordance with s 161(2) of the Constitution) are remote.

33. Why should I grant a stay of the National Court proceedings in support of a substantive proceeding that is doomed to fail? That is the reality the applicant must face. It means that it is not in the interests of justice to grant a stay.

34. The grounds put forward by the applicant in support of his stay application are all grounds of appeal included in his lengthy notice of appeal against conviction. He is entitled to argue those grounds of appeal at the hearing of the appeal.

35. He continues to be entitled to the full protection of the law during the balance of the criminal proceedings in the National Court, and in all Supreme Court proceedings pertaining to his conviction and sentence. If he is aggrieved by the sentence he may seek leave to appeal against it, in accordance with s 22(d) of the Supreme Court Act. If a custodial sentence is passed, he may apply for bail under s 11 of the Bail Act.

36. The application for a stay of verdict and the proceedings of the National Court will be refused.

ORDER

1. The further amended application for stay filed 25 July 2023 for a stay of the verdict of the National Court in CR(FC) 118 of 2019, The State v Paul Paraka, dated 26 May 2023, is refused.
   
2. For the avoidance of doubt the National Court proceedings in CR(FC) 118 of 2019, The State v Paul Paraka, shall continue in accordance with directions of the National Court.

_____________________________________________________________
Solicitor-General: Lawyers for the First Respondent
Public Prosecutor: Lawyers for the Second Respondent