Paul Paraka v Senior Constable Pius Peng & Chief Inspector Timothy Gitua (First Respondents) The Independent State of Papua New Guinea (Second Respondent) Rabura Mataio, Chief Migration Officer, (Third Respondent) Betty Palaso, Commissioner General of Internal Revenue (Fourth Respondent) (2016) SC1780

• Jurisdiction: Papua New Guinea
• Judge: Poole J, Ipang J, Polume-Kiele J
• Judgment Date: 16 December 2016
• Court: Supreme Court
• Citation: (2016) SC1780
• Docket Number: SCA 157 OF 2015
• Year: 2016
• Judgement Number: SC1780

Full Title: SCA 157 OF 2015; Paul Paraka v Senior Constable Pius Peng & Chief Inspector Timothy Gitua (First Respondents) The Independent State of Papua New Guinea (Second Respondent) Rabura Mataio, Chief Migration Officer, (Third Respondent) Betty Palaso, Commissioner General of Internal Revenue (Fourth Respondent) (2016) SC1780

Supreme Court: Poole J, Ipang J, Polume-Kiele J

Judgment Delivered: 16 December 2016

SC1780

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 157 OF 2015

PAUL PARAKA

Appellant

V

SENIOR CONSTABLE PIUS PENG & CHIEF INSPECTOR TIMOTHY GITUA

First Respondents

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

RABURA MATAIO, CHIEF MIGRATION OFFICER,

Third Respondent

BETTY PALASO, COMMISSIONER GENERAL OF INTERNAL REVENUE

Fourth Respondent

Waigani: Poole J, Ipang J, Polume-Kiele J

2016: 1 July, 9, 14 September, 16 December

APPEALS – appeals from District Court to National Court – whether an appeal lies from a decision of the District Court in committal proceedings to the National Court

PRECEDENT – doctrine of stare decisis – whether Supreme Court is bound by its own decisions – circumstances in which Supreme Court should depart from its own decisions.

The appellant was charged by the police with various criminal offences and was subject to committal proceedings in the District Court. He was aggrieved by decisions of the District Court, including a decision that he be committed for trial to the National Court. He appealed to the National Court against those decisions. The National Court upheld an objection to competency of the appeals and found them to be an abuse of process, as there is no avenue available to appeal against a decision of the District Court on any interlocutory ruling, including the decision to commit a person to trial in the National Court. The appellant then appealed to the Supreme Court against the decision of the National Court.

(1) The decision of the National Court under appeal was consistent with previous decisions of the Supreme Court, that there is no avenue available to appeal against a decision of the District Court on any interlocutory ruling, including the decision to commit a person to trial in the National Court.

(2) The doctrine of stare decisis (precedent) dictates that the Supreme Court should only overrule its decisions in previous cases with great caution, in exceptional circumstances, following full argument and preferably when the Court is comprised of a greater number of Judges than in the earlier case and perhaps when the Chief Justice is presiding.

(3) No exceptional circumstances were shown to exist in the present case. The law as pronounced by the Supreme Court in previous cases must prevail: there is no avenue available to appeal against a decision of the District Court on any interlocutory ruling.

(4) The appeal was without merit and was dismissed with costs.

Cases Cited:
Papua New Guinea Cases

ABCD Transport Ply Ltd v Sakaip (1997) N1577

Aihi v Isoaimo (2013) SC276

Asoka Seneviratne v Graham Chaffey (2000) N2014

Derbyshire v Tongia [1984] PNGLR 148

Grand Chief Sir Michael Thomas Somare v Chronox Manek (2011) SC1118

Jimmy Mostata Maladina v Posain Poloh (2004) N2568

Kiau Ninkints v Moki Rumints [1990] PNGLR 123

Korowi & Ors v Aaron & Ors SCA Nos 39, 43, 44 and 45 of 2016, 01.07.16 unreported

Lionel Gawi v The State (2006) SC850

MVIT v Reading [1988-89] PNGLR 610

Pato v Manjin (1999) SC622

Paul Paraka v Senior Constable Pius Peng (2014) N6120

Peter Rose v Yamu Samuel [1987] PNGLR 1

Rakatani Mataio v The State (2007) SC865

Re Bail Act Chapter 340, Application by Paul Tiensten (2014) SC1343

Re Upai Kunangel Amin [1991] PNGLR 1

Sakawar Kasieng v Andrew Baigry (2004) N2562

SCR No 2 of 1992 [1992] PNGLR 336

The State v Tanedo [1975] PNGLR 395

Wartoto v The State (2015) SC1411

Zanepa v Kaivovo (1999) SC623

Overseas Cases

Ex parte Cousens; Re Blackett and Anor (1947) 47 SR (NSW) 145

Moran v Lloyds (1981) 1 Lloyds Reports 423

Counsel

P Paraka, the appellant, in person

F Barton-Keene, for the Respondents

16th December, 2016

1. BY THE COURT: This is our decision on an appeal by Mr Paul Paraka against orders of the National Court made by Justice Makail in his decision handed down on the 20th of November 2015 dismissing two appeals, CR (APP) No 61 of 2014 and CR (APP) No 12 of 2015. In his decision, the primary judge found that s219 of the District Courts Act under which the appeals were brought did not permit an appeal from an interlocutory decision of a District Court (Paul Paraka v Senior Constable Pius Peng (2014) N6120).

2. The appellant was charged with conspiracy, misappropriation and money laundering. These criminal proceedings concern the Paraka Lawyers Legal Costs and related matters. The appellant applied to have the proceedings NCC 942-956 of 2014, Police v Paul Paraka; NCC 1289-1306 of 2013 & NCC 33-36 of 2014, Police v Paul Paraka consolidated and effectively to stay those criminal proceedings.

This appeal

3. The appeal is based on the proposition that the primary judge erred in finding that s 219 of the District Courts Act did not allow an appeal against an interlocutory ruling or interlocutory orders of the District Court in any criminal proceedings.

4. The appeal lies without leave of Court pursuant to ss 14(1)(a)(b) and (3)(b)(iii) of the Supreme Court Act Ch No 37. Four grounds of appeal are raised:

(i) His Honour erred in law in adopting a restrictive view of the right of appeal provided in s 219 of the District Courts Act in ruling that no appeal lies to the National Court from any interlocutory rulings or interlocutory orders of the District Court in any criminal proceedings;

(ii) His Honour erred in law in reading the words “order” conjunctively with the preceding word “conviction” and also erred in law in interpreting the words “adjudication of a court” with reference to only a final order under s 219 of the District Courts Act and therefore erred in law in dismissing both appeals in the National Court;

(iii) In the alternative, his Honour erred in law in failing to rule that any interlocutory orders or adjudication of the District Court are appealable to the National Court under s219 of the District Courts Act and that the National Court had jurisdiction to deal with the appeals;

(iv) His Honour therefore erred in law in ruling that there is no right of appeal under s 219 of the District Courts Act, in respect of interlocutory orders of the District Court dated 7 August 2014 in respect of proceedings NCC 942-956 of 2014 between the Police v Paul Paraka and another dated 15 April 2015 in respect of the proceedings NCC 1289-1306 of 2013 & NCC No. 33-36 of 2014 between the Police and Paul Paraka.

Preliminary matters

5. On the first day of hearing of this appeal, the Court noted that the appellant had failed to file and serve written submission/extract of submission by 15 June 2016 as directed by the Court. Only the respondents had filed their written submission on 23 June 2016.

6. Further, objections were raised by the appellant with regard to the composition of the bench. The Court was of the view that since the grounds of appeal raised questions of law, the objection to the composition of the bench should be refused.

7. This Court also raised matters in relation to four other appeals: SCA Nos 39, 43, 44, and 45 of 2016 between Philemon Was Korowi, Paul J Othas, Jacob Yafai and Harvey Bill Nii v Sgt Elizah Aaron, Snr Constable Pius Peng, Snr Constable Basi Sopata and The State. The appellants in these appeals were charged with allegations of conspiracy, misappropriation and money laundering together with the appellant. The appellants had applied by notice of motion to effectively stay their criminal proceedings pending hearing and determination of charges against them and to have their proceedings consolidated with that of the appellant, in the present appeal. The nature of the claim and grounds of appeal in SCA Nos 39, 43, 44 and 45 of 2016 are similar in nature to the present appeal. The Supreme Court in its decision on SCA Nos 39, 43, 44 and 45 of 2016, delivered on 1 July 2016 considered the question of whether an appeal lies to the National Court under s 219 from an interlocutory decision of the District Court: Korowi & Ors v Aaron & Ors SCA Nos 39, 43, 44 and 45 of 2016, 01.07.16 unreported. In addition, the Supreme Court considered whether the reading and interpretation of the words “conviction order or adjudication of a court” be given a wider definition so as to enable appeals to the National Court against interlocutory decisions of the District Court in committal proceedings.

8. These are the same issues raised in this current appeal. During the preliminary stage of the hearing, it was agreed that parties were at liberty to make submissions as to whether a positive obligation exists for this Court to follow a previous decision. The Court then adjourned to the August 2016 Supreme Court sittings. The appeal was then listed for the August 2016 Supreme Court sittings. However, it did not proceed then. It was...