N8508
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 118 OF 2019

THE STATE

V

PAUL PARAKA

Waigani: Berrigan J
2020: 10th and 22nd September

DISQUALIFICATION – Apprehended Bias – whether prior interlocutory decision in same proceedings gives rise to apprehended bias. 

Cases Cited:
Papua New Guinea Cases

Boateng v The State [1990] PNGLR 342
PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592
Gobe Hongu Ltd v. National Executive Council & Ors [1999] N1964 
Yama v. Bank South Pacific Ltd (2008) SC921
Application by Herman Joseph Leahy (2006) SC981 
Yama v Bank South Pacific (2008); SC921 
Review Pursuant to Constitution S 155(2)(b); Application by Herman Joseph Leahy (2006) SC855
Nambawan Super Ltd v Paraka (trading as Paul Paraka Lawyers) (2019) N7935
State v Paul Paraka (2020) N8829 (Decision on Presentation of Indictment)

Overseas Cases

In Re JRL; Ex parte CJL [1986] HCA 39
Johnson v. Johnson [2000] HCA 48 
Livesay v. NSW Bar Association (1983) 151 CLR 288
R v Liverpool City Justices; Ex parte Topping [1983] 1 WLR 119 

References cited

Section 526 of the Criminal Code

Counsel

Ms. T. Aihi, for the State 
Mr. P. Paraka in person 

DECISION ON APPLICATION TO DISQUALIFY

22nd September, 2020

1.	BERRIGAN J:  There are three motions before the Court:

(a)	Amended Notice of Motion No 1 filed 27 August 2020 (replacing Motion No 1 filed 12 August 2020) to have the indictment set aside or permanently stayed on the basis it is an abuse of process, and for want of prosecution;
(b)	Notice of Motion No 2 filed 12 August 2020 to quash the indictment on the basis that it is calculated to prejudice and/or embarrass, is an abuse of process and formally defective, and gives rise to pleas of autrefois acquit and double punishment; and
(c)	Amended Notice of Motion No 3 filed 1 September 2020 (replacing Motion No 3 filed 27 August 2020) for me to disqualify myself from presiding over the above pending motions and the substantive case on the basis of apprehended bias.

2.	This decision concerns the motion for me to disqualify myself on the basis of apprehended bias.

Background

3.	On 6 March 2020 I delivered my decision dismissing the accused’s objection to the presentation of an indictment pursuant to s. 526 of the Criminal Code by the Public Prosecutor:  State v Paul Paraka (2020) N8229 (Decision on Presentation of Indictment).

4.	The parties were directed to file pre-trial review statements by 23 March 2020 and the matter was adjourned to that date.  The State filed its pre-trial review statement on 20 March 2020.  The accused is yet to do so.

5.	The Court closed due to the Covid 19 pandemic on 23 March 2020.  The parties were advised in May that I intended to return to Papua New Guinea in June 2020 but for reasons beyond my control this was not possible.

6.	Following my return the matter was listed on 12 August 2020 at which time the accused informed the Court that he had that morning filed two notices of motion which he intended to serve on the State, and intended to file a further motion seeking that I disqualify myself.   The accused sought to have the first of his three motions dealt with first.  I directed that all three motions be dealt with together and at the accused’s request adjourned the matter for hearing on 3 September 2020.  Parties were directed to file written submissions by 24 August and serve them by 28 August 2020.  The State filed its submissions on 31 August.  

7.	The matter returned for submissions on 3 September 2020 at which time the accused sought to have the matter adjourned to late September or early October 2020 on the basis that “he was unable to complete the relevant affidavits in support of the notices of motions filed on time as a result of the substantial distractions caused by the Supreme Court Judicial Review applications for leave filed and argued and the applications for stay of the National Court proceedings.”  Furthermore, he indicated that he had filed an Amended Notice of Motion No 3 for me to disqualify myself from hearing the motions and sought an order for a transcript of the proceedings on 20 November and 6 December 2019 on which he relied for this purpose.

8.	As I explained to the accused, which he accepted, he is a very experienced lawyer and if he chooses to represent himself in this and other proceedings that is entirely a matter for him but that fact must not be allowed to delay these proceedings.  

9.	On reflection, however, I formed the view that the application for me to disqualify myself should be heard and determined first.  Furthermore, it was appropriate for the proceedings to be adjourned to allow time for the transcript requested to be made available for that purpose.

10.	The matter returned on 10 September 2020.  The accused initially sought but ultimately withdrew his application for a further adjournment, and made oral submissions in support of his application to have me disqualify myself.

Law

11.	In Boateng v The State [1990] PNGLR 342, a criminal case, the Supreme Court adopted the test outlined in R v Liverpool City Justices; Ex parte Topping [1983] 1 WLR 119 at 123 to be applied in determining whether a judge should disqualify themselves for apprehended bias:

“Would a reasonable and fair-minded person sitting in a court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the appellant was not possible”.

12.	Similarly, in PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592, it was held that:

“[T]he test applied in determining whether apprehension of bias was satisfied was whether an objective observer, knowing all surrounding facts, would be left with an apprehension, not a conviction that the judicial officer was predisposed, by matters extraneous to a proper adjudication, to reach a particular conclusion.” 
 
13.	In Gobe Hongu Ltd v. National Executive Council & Ors [1999] N1964 Sevua J expressed the view that the test of an 'objective observer' established by the Supreme Court in PNG Pipes Ltd (supra) should also include 'a fair minded, lay observer' as considered in Livesay v. NSW Bar Association (1983) 151 CLR 288.

14.	In Yama v. Bank South Pacific Ltd (2008) SC921, the Supreme Court observed that an objective, fair minded, lay observer “is to be attributed with having some knowledge of the way in which lawyers and judges work”. 

15.	The Australian High Court in Johnson v. Johnson [2000] HCA 48 explained further that:

“The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require the judge to discard the relevant, the immaterial and the prejudicial””.

16.	The Court in Gobe (supra) set out a number of general principles regarding such applications, together with four categories which might give rise to an apprehension of bias (emphasis mine): 

"1) Judges should not too readily accede to applications for disqualification, whereby parties may effectively influence the choice of a Judge in their cause, Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; [1986] HCA 39; 66 ALR 239;

2) Judges should resist from being driven from their Courts by the conduct or assertion of parties. Raybos Australia Pty Ltd v. Tectran Corp. Pty Ltd (No. 4) (1986) 6 NSWLR 674 (at 689);

3) A Judge may disqualify himself in circumstances where a fair minded lay observer, with knowledge of the material facts might entertain a reasonable apprehension that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question in issue. Livesey v. NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288;

4) A Judge should disqualify himself by reason of apprehension of bias, under one or more of the following principles, where it is demonstrated that, firstly, he has an interest in the case before him, which interest may be direct, indirect, pecuniary or otherwise. Secondly, by his conduct including published statements, whether such conduct is in the course of, or outside the proceedings. Thirdly, where the Judge, through association or relationship, either by himself, his spouse or children, has a direct pecuniary interest in the case and finally, disqualification by extraneous information, where the Judge had presided over an early case or he has had some knowledge of prejudicial and inadmissible facts. Webb v. R [1994] HCA 30; (1994) 181 CLR 41;

5) It is of fundamental importance in the administration of justice that litigants and the general public have full confidence in the integrity, including the impartiality of those entrusted with the administration of justice so that the impartiality and the Constitutional independence of the judiciary is not interfered with.

6) The test of an ‘objective observer’ established by the Supreme Court in PNG Pipes Ltd & Anor v. Mujo Sefa & Ors should also include ‘a fair minded, lay observer’ as considered in Livesay v. NSW Bar Association (supra)."

17.	Then in Application by Herman Joseph Leahy (2006) SC981 the Supreme Court made it clear that the “suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds”.  Furthermore that:

“3) General knowledge on the part of a Judge, obtained in the course of previous employment, of the subject matter of legal proceedings will not, by itself, give rise to a reasonable suspicion or apprehension of bias in the event that the Judge deals with the subject matter in a judicial capacity.

4) If a Judge's knowledge of the subject matter of legal proceedings is contended to be the basis of a suspicion or apprehension of bias there must be a real connection between the Judge’s knowledge and the issues for adjudication in those proceedings, eg if the Judge has expressed a prior opinion on the issues for adjudication ......”.

18.	In Re JRL; Ex parte CJL [1986] HCA 39, Mason J stated that the apprehension of bias must be firmly established:

“There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of pre-judgement and this must be “firmly established”....

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of  bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

19.	In considering whether a reasonable apprehension of bias has been established, it is necessary first to identify the facts, matters and circumstances by reason of which it is said that a judge might decide a case other than on its merits and secondly, to articulate the logical connection between those facts, matters and circumstances and the apprehended deviation from the course of deciding the case on the merits: Yama v Bank South Pacific (2008); SC921 adopting and applying Ebner v. Official Trustee in Bankruptcy [2000] HCA 63; Smits v. Roach [2006] HCA 36.

Application 

20.	The accused applies for me to disqualify myself from presiding over the pending motions, and the substantive case, on the basis that there is an appearance of bias. 

21.	The facts, matters and circumstances which the accused contends give rise to the apprehension that I might decide the pending motions, or the substantive matter in the event that his motions are unsuccessful, other than on their merits are that:

(a)	I previously indicated that I would disqualify myself;
(b)	Whilst employed at the Office of the Public Prosecutor, I was involved in all fraud cases investigated by the “Sweep Team” between August 2011 and December 2014; 
(c)	I previously ruled against the accused in my Decision on Presentation of Indictment regarding abuse of process; and
(d)	I previously ruled against the accused in my Decision on Presentation of Indictment regarding s. 526(3) of the Criminal Code.

22.	The second, third and fourth factual bases were identified for the first time at hearing.  Whilst not fully articulated, it appears that the accused also contends that the fact that I previously ruled against him in my Decision on Presentation of Indictment gives rise itself to a reasonable apprehension of bias.  

23.	The Public Prosecutor opposes the application.

I previously indicated that I would recuse myself 

24.	There is no evidence to establish that I previously indicated that I would recuse myself from these proceedings.

25.	The accused had been labouring under the misapprehension that I had previously indicated that I would recuse myself after hearing the objection to the indictment presented under s. 526 of the Criminal Code.

26.	Upon reviewing the transcript of proceedings on 20 November and 6 December 2019, the accused now concedes that I did not give any such undertaking and withdraws his application on that basis.  

27.	The misunderstanding may have arisen because of my comments concerning an annexure, referred to as “Exhibit Q” to the affidavit of the accused sworn 19 November 2019 in support of his objection to the presentation of the s. 526 indictment.  At paragraph 27 of that affidavit the accused refers to Exhibit Q as a copy of one of three bundles of the police hand up brief served by the Public Prosecutor on him.  I indicated to the parties prior to hearing submissions on his objection to the s. 526 indictment that if I was required to refer to the annexure in determining the accused’s objection to the s. 526 indictment I may need to recuse myself from the matter and transfer the file to another judge.  

28.	It was not necessary for me to have regard to the content of Exhibit Q for the purposes of my decision and I made it clear in my written decision that I had not done so: see [113] of my decision.  The accused takes no issue with this.

Involved in or advised the “Sweep Team” whilst at the Office of the Public Prosecutor

29.	There is no evidence to establish that I was involved in, or advised the “Sweep Team” whilst at the Office of the Public Prosecutor. 

30.	In initially seeking to adjourn the hearing of the motion, the accused referred to a letter he had written to the Office of the Public Prosecutor on 7 September 2020 (which appears to have been dated 7 September 2019 in error) seeking information as to whether I was involved in all fraud cases investigated by the “Sweep Team” between August 2011 and December 2014. 

31.	I indicated to the accused that I was no longer with the Office of the Public Prosecutor by August 2011, a matter which he accepted.  I made it clear that I would adjourn the proceeding to allow the Public Prosecutor to respond formally but the accused accepted my statement and withdrew this aspect of his application.  

32.	I note here that the affidavit of James Haro sworn 10 September 2020 is hearsay.

Abuse of Process

33.	As I understand it, the logical connection between my ruling in the Decision on Presentation of Indictment and the apprehended deviation from deciding the pending motions on their merits is that:  the accused seeks to quash the indictment and/or stop the proceedings on the basis, inter alia, that it is an abuse of process and I have already determined that issue in dismissing his objection to the presentation of the s. 526 indictment, thus a fair minded, lay observer might think that I would be predisposed to find against him on the pending motions.  Here he relies on categories two and four of Gobe (supra).

34.	There is no factual foundation for the contention that I have already determined the issue of abuse of process.

35.	The accused initially filed a motion in November 2019 containing a number of objections to the presentation of the indictment, one of which was that it should be permanently stayed for abuse of process.  At the hearing of submissions, however, he made it clear that he was only raising the “issue of non-compliance with the mandatory preconditions under s. 526”, and that in the event that I did accept the indictment, he would raise the other matters contained in his motion in a further and separate motion to quash the indictment prior to arraignment:  see the transcript of proceedings on 6 December 2019 at lines 24 to 30.   

36.	Accordingly, my decision on the presentation of the indictment was concerned only with the accused’s objection to the presentation of the indictment on the basis that the Public Prosecutor had failed to comply with the preconditions contained in s. 526 of the Criminal Code.  I made this clear in my decision at [13] when I said that “the accused no longer wished to press all of the grounds contained in his notice of motion but objected to the presentation of the indictment on the basis that the preconditions contained in s. 526 of the Criminal Code had not been met”.  

37.	Furthermore, in making my orders I directed that the accused was to identify on which, if any, of the remaining grounds of his notice of motion he wished to rely as part of the pre-trial process: see [114(d)] of Decision on Presentation of Indictment (supra).  

38.	It is also clear from the face of my decision that I was not required to consider, and did not express any view about, whether or not there had been an abuse of process at any stage up until that time. 

39.	My decision considered the concept of “abuse of process” only to the extent that I was required to consider whether the decision by the learned magistrate to strike out all charges for being an abuse of process constituted a “refusal to commit” by the magistrate for the purposes of s. 526(1) of the Criminal Code:  see [33] to [65] of the Decision on Presentation of Indictment (supra).  

40.	For the reasons set out in my decision, I found that it did constitute a refusal to commit, but that is a very different question from that which the accused now wishes to raise in his pending motions, namely whether or not the proceedings in the National Court should be stopped for abuse of process.  

41.	In my view, any objective, fair minded lay observer, having some knowledge of the way in which lawyers and judges work would appreciate that.

42.	I will return to the contentions regarding prejudicial material and the substantive case generally below.  

S. 526 (3) of the Criminal Code

43.	As I understand it, the logical connection between my ruling in Decision on Presentation of Indictment and the apprehended deviation from deciding the pending motions on their merits is that:  the accused seeks to quash the indictment and/or stop the proceedings on the basis, inter alia, that the Public Prosecutor has failed to comply with s. 526(3) of the Criminal Code and I have already determined the issue in dismissing his objection to the presentation of the s. 526 indictment.  Again, I understand that he relies here on categories two and four of Gobe (supra).

44.	Section 526 (indictment without committal) of the Criminal Code provides that:

“(1) Where a court of summary jurisdiction has refused to commit a person for trial for an indictable offence, the Public Prosecutor may–
(a) consider the evidence contained in the depositions taken before the court (and any other relevant evidence); and
(b) reduce into writing in an indictment a charge of any offence that the evidence appears to warrant.
(2) The indictment may be presented to the National Court by the Public Prosecutor or a State Prosecutor.
(3) Where the Public Prosecutor reduces a charge to writing in an indictment under Subsection (1), he shall cause to be served on the accused person or his lawyer–
(a) copies of the depositions taken at the committal proceedings; and
(b) copies of statements taken from witnesses whom the prosecution intends to call at the trial,
within such time before the commencement of the trial as is reasonable in order to allow the accused person to prepare his defence.”

45.	In bringing his objection to the presentation of the s. 526 indictment, the accused submitted in so far as s. 526(3) was concerned that, firstly, s. 526(3) was a precondition and secondly, that the Public Prosecutor had failed to comply with it.  I found that it was not a precondition like those required under s. 526(1) (and articulated by the Supreme Court in Review Pursuant to Constitution S 155(2)(b); Application by Herman Joseph Leahy (2006) SC855) for the reasons set out in my decision, and that in any event the Public Prosecutor had complied with it:  see  [27] and [106] to [112] of the Decision on Presentation of Indictment.  

46.	The accused submits now that I was correct to find that s. 526(3) was not a precondition as such, and that in those circumstances I should not have gone on to decide whether or not it had been complied with but reserved my decision and given him an opportunity to raise the matter in support of an application to quash the indictment instead, which he now wishes to do.  Further, that the arguments he wishes to raise in this regard are somewhat different from those raised on the presentation of the indictment.   In particular, that s.526(3) imposes certain obligations following the Court’s acceptance of a s.526 indictment which the Public Prosecutor has since failed to comply with.

47.	It is not the role of the Court to determine what issues an accused seeks to raise or lines of argument he seeks to pursue.  It was the accused who brought the objection on the basis that s. 526(3) was a precondition in his initial motion and put the issue before the Court for determination.  

48.	As a result of my finding, the accused now wishes to raise what is effectively an alternative argument as to the applicability of s. 526(3).  

49.	The resolution of alternative arguments in criminal proceedings is very common, albeit that the alternative argument is usually raised and dealt with at the same time as the principal one.  Certainly, no one would normally expect that after having decided the principal argument against an applicant that the trial judge could not go on to consider the alternative argument. 

50.	In my view a fair-minded lay observer, in possession of all relevant facts, and having some knowledge of the way in which lawyers and judges work would appreciate that. 

51.	Nor is the fact that I have previously found that s. 526(3) has been complied with indicative of itself of bias.  

52.	In the High Court of Australia decision of British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 2, French CJ said that in regard to a finding properly made by a judge in the course of an interlocutory ruling or in earlier proceedings, that:

“It is an area in which courts should be astute not to defer to that kind of apprehension (of bias) that is engendered by the anticipation of an adverse outcome, rather than a legitimate concern about partiality. By way of example, the fact that a judge who has made a finding of fact adverse to a party on particular evidence is likely to make the same finding on the same evidence, is not of itself indicative of bias. It could be indicative of consistency subject to the judge having an open mind when it came to argument about the effect of the evidence.”

See Nambawan Super Ltd v Paraka (trading as Paul Paraka Lawyers) (2019) N7935 at [16].

53.	In my view those comments are analogous to the situation here.  The accused will have an opportunity to raise his alternative argument about s.526(3) of the Criminal Code.  There is no evidence to suggest and I am not of the view that I will approach it with a closed mind.  

54.	I will return to the contentions regarding prejudicial material and the substantive case generally below.  

Generally

55.	Nor, in my view, does the fact that I decided the accused’s objection to the presentation of the s.526 indictment against him provide a foundation for a reasonable apprehension that I might not determine either of the pending motions in this proceeding, or the substantive case in the event that the motions are unsuccessful, other than with an impartial and unprejudiced mind.   

56.	As stated by Hartshorn J in Nambawan Super Ltd v Paraka (trading as Paul Paraka Lawyers) (2019) N7935 at [28] and [29]:

“ The mere fact that a judge has previously decided cases in favour or against a party does not provide a foundation for a reasonable apprehension that the judge might not consider another case involving one or both of the parties with other than an impartial and unprejudiced mind; MTI v. SUL [No. 2] [2012] WASCA 87. To my mind, this applies equally to interlocutory decisions made by a judge in the same proceeding.
In this regard, I refer to the decision of Sevua J. in Gobe Hongu v. National Executive Council & Ors (1999) N1964 in which His Honour rejected an application for disqualification made on the basis that he had ruled against the applicant in an earlier application for interlocutory relief; of Injia DCJ (as he then was) in Paru Aihi v. Sir Moi Avei (2004) N2523, where His Honour refused a disqualification application made on the basis that he was a member of the bench of 3 previous Supreme Court election review cases which had ruled against the applicant, and my decision in Pacific Equities & Investments Ltd v. Goledu (supra), in which I refused a disqualification application that was made on the basis amongst others, that I had refused injunctive relief in earlier proceedings that had related issues involving two of the parties and from which an appeal was pending.”

57.	These principles were outlined in applications for disqualification in civil proceedings but in my view they are equally applicable to criminal proceedings. 

58.	It is normally the case that the assigned trial judge in a criminal matter will hear and determine interlocutory applications, including applications to quash an indictment and objections to joinder of charges for example, as well as issues that might arise during the trial itself, for instance applications to amend an indictment, or applications to exclude evidence on a voir dire or during the trial proper, together with no-case submissions, whilst also hearing and determining the substantive issues at trial.  Whilst the applications all arise out of the same proceedings, involve the same parties, and may even raise similar or related issues, ultimately the questions for determination are different.  

59.	Furthermore, the issues determined in the Decision on the Presentation of the Indictment, concerned the preconditions in s.526(1) of the Criminal Code.  As explained above, those issues are distinct from the ones to be determined on the pending motions, which concern whether the indictment should be quashed, or the proceedings stopped.  They are also distinct from the issues to be determined on any trial that might proceed in the event that the motions are unsuccessful, namely whether the accused misappropriated certain monies.  

60.	Again it is my view that a fair minded lay observer, in possession of all relevant facts, and having some knowledge of the way in which lawyers and judges work would appreciate that.  

61.	Nor has the accused identified the prejudicial or inadmissible facts which I have gained knowledge of as a result of hearing the objection to the presentation of the indictment, and/or whether they are prejudicial or inadmissible in relation to the pending motions or the substantive proceedings.  

62.	In the circumstances, I do not accept the contention that because of my previous decision on the accused’s objection to the presentation of the indictment in this proceeding that an objective, fair minded, informed, lay observer would reasonably apprehend that I may be predisposed to find against the accused on either the pending motions, or the substantive matter in these proceedings in the event that those motions are unsuccessful.  

Orders

63.	Accordingly, the relief sought in the accused’s Amended Notice of Motion No 3 filed 1 September 2020 is refused.

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