Paul Paraka v The Independent State of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Purdon-Sully J
• Judgment Date: 19 October 2023
• Neutral Citation: SC2478
• Citation: SC2478, 2023-10-19,2023-10-19
• Counsel: P Paraka, the Applicant in person,H Roalakona, for the Respondent
• Docket Number: SCAPP 4 OF 2023
• Hearing Date: 18 October 2023
• Court: Supreme Court

SC2478

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCAPP 4 OF 2023

Between

Paul Paraka

Appellant

v.

The Independent State of Papua New Guinea

Respondent

Waigani: Purdon-Sully J

2023: 18^th October

SUPREME COURT — Bail Application — Appeal after conviction — Exercise of discretion — Exceptional circumstances — Prospects of success on appeal — Medical condition — Preparation for appeal — Other grounds including family welfare considered — Bail refused

SUPREME COURT — Application for enforcement of constitutional rights — Constitution, s.37 (protection of the law) — Constitution, s.57 (enforcement of guaranteed rights and freedoms) — whether applicant should be released into care of his doctor and be permitted to attend legal office to prepare for appeal — Deficiency of evidence that constitutional rights breached by imprisonment — Application refused

Cases Cited:

Papua New Guinea Cases

Ati Wobiri & Ors v The State SCAPP 18,19 & 20 of 2016, Unreported Judgment dated 24 November 2016

Charlie v The State [2004] PGSC19

David Kaya v The Independent State of PNG [2019] PGSC 119

Denden Tom & 2 Ors v The State (2007) SC914

Ere v State [2018] PGSC 109; SC1875

Jaminan v The State [1983] PNGLR 122

Kavo v The State (2014) PGSC 76; SC1571

Mataio v The State (2007) PGSC 22; SC865

Nombri v Kadai [2014] PGSC 75

Paraka v The Independent State of Papua New Guinea SCAPP No 4 of 2023, Unreported Judgment dated 6 October 2023

Schubert v State (1978) PNGLR 394

The State v Tiensten (2014) N5563

Smedley v The State [1978] PNGLR 452

Tracey Tiran v The State (2019) SC1844

Yasause v The State (2011) SC112

Overseas Cases

Chamberlain v R (No 1) [1983] HCA 13; (1983) 153 CLR 514

Legislation

Bail Act 1977 ss.11

Bail Rules 2021

Correctional Services Act 1995 ss.7, 13, 67, 72, 75, 96, 100, 122, 123, 124, 126, 141

Supreme Court Act 1975 ss.5 (i)(e), 22

The Constitution of Papua New Guinea ss.37(1)(3), (11), (15), (16), 42(6), 57(1), (3)

Counsel

P Paraka, the Applicant in person

H Roalakona, for the Respondent

Paul Paraka: The Applicant in Person

Public prosecutor: Lawyers for the Respondent

These reasons were delivered ex tempore on 19 October 2023 and have been corrected for literal and grammatical errors.

19^th October 2023

1. Purdon-Sully J: INTRODUCTION: This is an application for bail by Mr Paul Paraka pending appeal. The application is opposed by the State.

2. If Mr Paraka's application is unsuccessful, he seeks the orders detailed in his Amended Application filed on 16 October 2023 as follows:

1. FOR AN ORDER pursuant to ss. 96, 100 and 141 of Correctional Services Act, s.5(1)(a) and (b) of the Supreme Court Act, and ss. 37 (1) and (3) and 57(3) of the Constitution.

(a) The CIS Commissioner and Bomana Commander transfer the prisoner forthwith to the care and custody of Doctor Boko of the Port Moresby General Hospital (Cartiology Laboratory Clinic) medical facility forthwith pursuant to the medical reports dated 7 September 2022 and 27 September 2022 respectively until the prisoner's full recovery and upon recommendations from the Doctors and the conclusion of the Supreme Court cases whichever occurs earlier.

(b) The CIS Commissioner and Bomana Commander give all necessary and practical help for the prisoner to have access to his office and facilities to prepare for his cases in the Supreme Court in the following proceedings:

(i) SCAR No. 20 of 2023; Paul Paraka v The State — Substantive Appeal,

(ii) SCAR No. 20 of 2023; Paul Paraka v The State, Appeal on State (sic),

(iii) SCAPP No. 4 of 2023; Paul Paraka v The State — Bail Application.

2. Affidavits in support of this application is sworn by Paul Paraka on 11, 12 and 16 October 2023.

RELEVANT BACKGROUND

3. The relevant background to this application is as follows.

4. On 26 May 2023 Mr Paraka was found guilty and convicted by the National Court of five (5) counts of misappropriation.

5. On 4 July 2023 he filed a Notice of Appeal against that conviction. The grounds of the appeal are detailed but essentially assert errors of law and fact on the part of the trial judge and a denial of natural justice and fair trial. He informed the Court yesterday he intends to amend his appeal to also include an appeal against sentence.

6. On 16 August 2023 Mr Paraka's application for a stay of the verdict of the National Court in his criminal proceedings pending the hearing of his substantive appeal against conviction and prior to his sentencing was refused by a Judge of this Court.

7. On 28 August 2023 Mr Paraka sought the same relief, namely a stay of the verdict of the National Court, in separate proceedings involving the enforcement of his constitutional rights. That application was also refused.

8. He has lodged appeals against both stay decisions.

9. On 4 October 2023 Mr Paraka was sentenced to a term of imprisonment of 20 years with hard labour. He was transported to Bomana Correctional facility where he remains to this day.

10. On 4 October 2023 he lodged this application for bail. It came before my brother Judge, Justice Dingake, on 6 October 2023. Mr Paraka, who self-acts, was granted an adjournment to 12 October 2023 to enable him more time to file further documents in support of the bail application. A further application for bail pending the adjourned hearing was refused.

11. On 6 October 2023 Mr Paraka wrote to the Commander of the Bomana Correctional facility seeking to be placed in the jail's infirmary due to his cardiac condition. It is unchallenged that Mr Paraka suffers from coronary disease and is at a high risk of a heart attack. On the evidence Mr Paraka has found his living conditions in prison challenging and on his case the conditions are not supportive of his health needs.

12. On 9 October Mr Paraka wrote again to the Commander seeking a leave of absence to see his specialist doctor for regular checkups and also to be allowed to use his office facilities in Boroko to meet with a lawyer.

13. Both communications to the Commander included copies of various medical reports, including reports from his cardiologist, Dr Boko. One of the reports, dated 11 March 2022 from his General Practitioner, noted that he had, at that time, suffered a mild stroke.

14. Mr Paraka's bail application could not proceed on the adjourned date of 12 November 2023 as he had not filed and served his material. He sought further time to do so. A further date for hearing could not be provided at that time, Justice Dingake indicating that the matter may need to be transferred to another Judge given his court commitments and absence on official court business thereafter.

15. That afternoon Mr Paraka filed his further documents in support of his bail application and material addressing the exceptional circumstances he asserted grounded his application. The material was extensive.

16. A Chamber Order was issued on the afternoon of 12 October 2023 that the bail application would be heard by me on 18 October at 9.30 am.

17. On 12 October 2023 Mr Paraka filed two applications largely in the same terms save for one order, seeking orders, some in the alternative, requiring the Commander and medical doctor at Bomana to take certain steps responsive to his health needs and for the Commander to facilitate access to his law office. The orders sought were purported to be brought pursuant to various sections of the Correctional Services Act 1995, Supreme Court Act 1975 and the Constitution.

18. The following day, the 13 October 2023, Mr Paraka forwarded a letter to the Court seeking an urgent listing of his application at either 11am or 2pm that day.

19. The papers did not establish urgency and a Chamber Order issued that the matter remain listed for 18 October.

20. On 16 October 2023 Mr Paraka filed his Amended Application as earlier detailed.

21. On 17 October Mr Paraka filed a further application, again on the basis of urgency, seeking a hearing before the Court that day asserting in written communication with the Registrar that the basis of the urgency was that he had suffered a mini stroke.

22. On 17 October a Chamber Order issued refusing the relisting as requested however directing the Registrar to issue a Summons requesting the Commander at Bomana to appear before the Court to give evidence on 18 October with the hearing to commence at 1.30pm instead of 9.30 am as originally allocated.

23. On 18 October 2023, I heard the application for bail together with the Amended Application in the event bail was not granted. Chief Superintendent Yenny Oiufa, Commander of the Correctional Service at Bomana, gave evidence. I thank him for his attendance at short notice. I shall refer to his evidence later in these reasons in my discussion of the issues requiring determination.

THE ISSUES

24. There are two issues:

a. Should Mr Paraka be granted bail pending appeal; and

b. If not, then should the Court make the orders sought by him in his Amended Application filed on 16 October 2023.

25. I have considered the material relied upon by the parties which is a matter of record. I have considered the oral submissions of the parties and the written submissions filed on behalf of the State. I do not propose to respond to each and every submission made however in reaching a determination on the issues I am required to decide I have considered all submissions.

BAIL APPLICATION

26. Mr Paraka brings his bail application pursuant to s.11 of the Bail Act 1977 and s.5(1)(e) of the Supreme Court Act 1975. I sit as a single judge of the Supreme Court in determining the application.

27. Section 11 of the Bail Act provides that when a person lodges an appeal against his conviction or sentence or both the court may in its discretion grant bail pending the appeal.

28. Section 5(1)(e) of the Supreme Court Act provides that where an appeal is pending before the Supreme Court an order admitting the appellant to bail may be made by a Judge. Subsection 2 of that Act provides that a direction or order so...