The State v Paul Paraka

• Jurisdiction: Papua New Guinea
• Judge: Berrigan J
• Judgment Date: 26 May 2023
• Neutral Citation: N10273
• Citation: N10273, 2023-05-26
• Counsel: Ms H. Roalakona and Ms S. Mosoro, for the State,Mr P. Paraka for himself
• Docket Number: CR (FC) NO. 118 OF 2019
• Hearing Date: 14 September 2021,15 September 2021,17 September 2021,21 September 2021,12 October 2021,13 October 2021,15 October 2021,18 October 2021,08 February 2022,15 February 2022,17 February 2022,18 February 2022,01 March 2022,04 March 2022,07 March 2022,08 March 2022,06 April 2022,29 April 2022,01 June 2022,03 June 2022,10 June 2022,14 June 2022,15 June 2022,17 June 2022,21 July 2022,02 August 2022,08 August 2022,09 August 2022,11 August 2022,12 August 2022,15 August 2022,16 August 2022,17 August 2022,18 August 2022,05 September 2022,06 September 2022,12 September 2022,14 September 2022,15 September 2022,20 September 2022,21 September 2022,22 September 2022,23 September 2022,07 October 2022,07 November 2022,05 December 2022,06 December 2022,06 February 2023,26 May 2023
• Court: National Court

N10273

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 118 OF 2019

The State

v.

Paul Paraka

Waigani: Berrigan J

2021: 14, 15, 17, 21 September, 12, 13, 15, 18 October

2022: 8, 15, 17, 18 February, 1, 4, 7, 8 March, 6, 29 April, 1, 3, 10, 14, 15, 17 June, 21 July, 2, 8, 9, 11, 12, 15, 16, 17, 18 August, 5, 6, 12, 14, 15, 20, 21, 22, 23 September, 7 October, 7 November, 5, 6 December

2023: 6 February and 26 May

CRIMINAL LAW — S 383A, Criminal Code, Misappropriation — Honest Claim of Right without Intention to Defraud — Guilty.

The accused was the principal of the law firm, Paul Paraka Lawyers (PPL). It was alleged that over a period of almost five years commencing on 24 April 2007 more than K162 million was paid by the Department of Finance (DoF) to the ultimate benefit of the accused. The monies were paid to PKP Nominees Ltd (PKP Nominees), a property investment company wholly owned and directed by the accused, or to the accounts of seven other law firms – Sino & Company Lawyers, Jack Kilipi Lawyers, Harvey Nii Lawyers, Sam Bonner Lawyers, Korowi Lawyers, Kipoi Lawyers and Yapao Lawyers. The monies were paid by way of 65 cheques, ranging in value from about K1m to almost K5m. In every case the law firms retained at least K30,000 to K50,000 and sometimes as much as K400,000 before almost immediately passing the proceeds on to PPL or PKP Nominees.

The accused was charged with five counts of misappropriating property belonging to the State between 2007 and 2011 in the amounts of K30,300,000, K30,054,312.68, K14,480,672.28, K39,808,610, and K48,216,600, respectively, contrary to s 383A(1)(a)(2)(d) of the Criminal Code.

Held:

(1) The monies held to the credit of the State with BPNG and controlled by DoF, and upon which the cheques payable to PKP Nominees and each of the seven law firms were raised, were property belonging to the State.

(2) At the time the cheques were raised property belonging to the State was deflected from the purposes of the State and applied to the accused's own use and the use of others: R v Easton [1994] 1 Qd R 532 adopted and applied.

(3) The State retained an interest in the property and was its owner: Brian Kindi Lawi v The State [1987] PNGLR 193 applied.

(4) The person or persons in DoF who applied the property to the accused's own use and the use of others did so dishonestly.

(5) The offences charged in the indictment were committed, the accused knew the essential facts constituting the offences in each case, including the state of mind of the person or persons who committed the offences, and procured the perpetrator to commit the offences in each case, for the purposes of establishing his liability pursuant to s 7(1)(d) of the Criminal Code.

(6) The totality of the circumstances excluded any rational possibility that the accused acted in the exercise of an honest claim of right and without an intention to defraud.

(7) The combination of circumstances led to the inevitable conclusion beyond reasonable doubt that the accused dishonestly applied the property belonging to the State the subject of Counts 1 to 5 of the indictment to his own use and the use of others, in the amounts averred but for Count 5, in respect of which the sum was K47,608,300. The State's evidence excluded beyond reasonable doubt any other reasonable conclusion inconsistent with the guilt of the accused.

The accused is convicted of Counts 1 to 5 of the indictment.

Cases Cited:

Papua New Guinean Cases

Paul Paraka v Kaluwin (2019) N7975

The State v Paul Paraka (Decision on Presentation of Indictment) (2020) N8229

The State v Paul Paraka (Decision on Further Amended Motion (No 1) (2020) N8608

The State v Paul Paraka (Decision on Further Amended Motion (No 2) (2021) N8807

The State v Paul Paraka (Decision on apprehension of bias) (2020) N8508

The State v Paul Paraka (2021) N8938

The State v Paul Paraka (Decision on Application to Call Additional Evidence) (2021) N9159

The State v Paul Paraka (Decision on Admission of Bank Records) (2022) N9568

The State v Paul Paraka (Application to Lead Evidence via Video Link) (2022) N9970

Kennedy v Cheah (2021) SC2157

Lama v NDB Investments Ltd (2014) N5970

Luma v State (2022) SC2249

Sam Koim v The State (2016) N6558

Powers, Functions, Duties and Responsibilities of the Police Commissioner (2014) SC1388

S v William (1995) N1380

Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78

Odata Limited v Abusa (2001) N2106

The State v Graham Yotchi Wyborn (2004) N2847

Havila Kavo v The State (2015) SC1450

Wartoto v The State (2019) SC1834

David Kaya and Philip Kaman v The State (2020) SC2026

State v Merimba (2022) N9481

Roland Tom v State (2019) SC1833

Paulus Pawa v. The State [1981] PNGLR 498

Maladina v The State (2016) SC1495

The State v Epei (2019) N7845

The State v Joan Kissip (2020) N8184

The State v Felix Kange (2020) N8488

R v Birch [1978] PNGLR 79

Maraga v The State (2009) SC968

James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173

Brian Kindi Lawi v The State [1987] PNGLR 193

R v Easton [1994] 1 Qd R 532

Kalinoe v Paul Paraka Lawyers (2014) SC1366

Kimisopa et al v Paul Paraka trading as PPL (2009) SC1325

Kalinoe et al v Paul Paraka trading as PPL (2010) SC1024

Banaso v The State (2022) SC2302

Imiyo Wamela v The State [1982] PNGLR 269

Karani and Aimondi v The State (1997) SC540

Aparo, Araba, Haio, Tinidipu and Akwia v The State [1983] SC249

Pritchard v State (2016) SC1541

Ingian v State (2022) SC2263

The State v Hasu (2018) N8656

The State v Bobby Leva (2019) N8696

The State v Wai (2020) N8182

Overseas Cases

De Gruchy v The Queen [2002] HCA 33; 211 CLR 85

Muhammed El Dabbah v Attorney-General for Palestine [1944] AC 156 PC

Apostilides v R (1984) 154 CLR 563

R v Harris [1927] 2 KB 587

R v Soma (2003) 212 CLR 299

R v Shaw (1991) 57 A Crim R 425

Whitehorn v R (1983) 152 CLR 657

R v Newland (1997) 98 A Crim R 455

R v Olivia [1965] 3 All ER 116

Dyers v R (2002) 210 CLR 285

Jones v Dunkel (1959) 101 CLR 298

RPS v The Queen (2000) 199 CLR 620

Stuart v The Queen [1974] HCA 54; (1976) 134 CLR 426

R v Oberbillig [1989] 1 Qd R 342

R v Adams [1998] QCA 64

Attorney-General's Reference (No 1 of 1975) [1975] 2 All ER 684

References Cited

Sections 11, 37, 44, 49, 51, 57, 155, 187, 197, 213, 214, Constitution

Sections 7, 23(2), 383A, 531, 573, 588, Criminal Code (Ch. 262)

Sections 7, 8, 13, Attorney-General Act, 1989

Section 6, Search Act

Sections 44, 61, 65, Evidence Act

Sections 13, 14, Claims By and Against the State Act

Section 16, Police Act

Sections 3, 4, 7, Audit Act

Section 4, Underlying Law Act 2000

Counsel

Ms H. Roalakona and Ms S. Mosoro, for the State

Mr P. Paraka for himself

Public Prosecutor: Lawyers for the State

Paul Paraka: For himself

DECISION ON VERDICT

26 May, 2023

1. Berrigan J: The accused is charged with five counts of misappropriating property belonging to the State, contrary to s 383A(1)(a)(2)(d) of the Criminal Code (Ch. 262) (Criminal Code).

2. In summary, the State alleged that each year between 2007 and 2011 the accused caused very large amounts of State monies, in total almost K163m, to which he had no entitlement, to be paid by the Department of Finance (DoF) to the bank accounts of various law firms — Sino & Company Lawyers, Jack Kilipi Lawyers, Harvey Nii Lawyers, Sam Bonner Lawyers, Korowi Lawyers, Kipoi Lawyers, Yapao Lawyers and PKP Nominees Ltd (PKP Nominees) – and from there to the bank accounts of his own law firm, Paul Paraka Lawyers (PPL), or his company, PKP Nominees.

3. A trial was conducted on indictment charging the accused with five counts of misappropriation such that he:

Count 1: between the 24th day of April 2007 and the 31st 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 28th day of February 2008 and the 31st 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 11th day of March 2009 and the 18th 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, Four Hundred and Eighty Thousand, Six Hundred and Seventy-Two Kina and Twenty-Eight Toea (K14, 480, 672.28) the property of the Independent State of Papua New Guinea.

Count 4: between the 20th day of January 2010 and the 29 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 Forty Eight Million Two Hundred and Sixteen Thousand and Six Hundred Kina (K48, 216, 600) the property of the Independent State of Papua New Guinea.

Contrary to section 383A(1)(2) of the Criminal Code.

4. On arraignment the State alleged that:

“The accused, Paul Paraka owned and operated a law firm under his name as Paul Paraka Lawyers.

In about 2000, Paul Paraka Lawyers (PPL) was engaged by the Attorney General and the Office of the Solicitor General to act for and on behalf of the State in civil litigation matters.

On 17 October 2006, the State withdrew its instructions from PPL and instructed PPL to cease to act as of Monday 20 November 2006.

Between 2007 and 2011, a number of payments were made by the...