Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Paraka [2021] PGNC 416; N9159 (17 September 2021)

N9159

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 118 OF 2019

THE STATE

V

PAUL PARAKA

Waigani: Berrigan, J
2021: 15^th and 17^th September

CRIMINAL LAW – PRACTICE AND PROCEDURE – Application for leave to call evidence of additional search warrants.

Cases Cited:

Birch v The State [1979] PNGLR 75
The State v Keake (2000) N2003

References Cited

Section 526(3)(b) of the Criminal Code

Counsel

Ms H Roalakona and Ms S Mosoro, for the State
Mr P Paraka, for himself

RULING ON APPLICATION TO CALL ADDITIONAL EVIDENCE

17^th September, 2021

1. BERRIGAN J: The accused is charged with five counts of dishonestly applying money belonging to the State. It is alleged that monies were paid into the accounts of Paul Paraka Lawyers (PPL) through the bank accounts of various other law firms by the Finance Department for which no services were provided.
   
2. A voir dire is being held to determine the admissibility of bank records relied upon by the State. Mr Paraka objects to the bank records on the basis that the search warrants under which they were produced are invalid. Objection is also made to the bank records on the basis that some or all of those produced were outside the scope of the search warrants.
   
3. The State filed its Amended Pre-Trial Review Statement on 17 August 2021. Amongst other amendments, it added five search warrants which would be relied upon at trial.
   
4. Fifteen search warrants issued between the years 2012 and 2014 were admitted without objection on the voir dire through Chief Inspector Timothy Gitua, the team leader of investigations into funds allegedly paid into PPL’s accounts through various law firms.
   
5. Mr Paraka now objects to the production of the supporting documents used to obtain ten of those search warrants on the basis that those ten warrants and supporting documents were not contained in the brief served on him and are not identified in the State’s Amended Pre-Trial Review Statement. Mr Paraka says that the State is bound by its pre-trial review statement. He also points to the fact that he has been seeking to discuss the issue of the admissibility of various documents, including bank records, with the State for some time.
   
6. The State concedes that only five of the fifteen warrants upon which it seeks to rely are identified in its Amended Pre-Trial Review Statement. Counsel cannot explain the failure to list all fifteen. She submits, however, that Mr Paraka is aware of the warrants and supporting documents as they have been served on him pursuant to the affidavit of Chief Inspector Gitua sworn 16 July 2021, which was produced by the State in response to orders made by the Court on 22 June 2021 for the production of the warrants and supporting documents, upon application by Mr Paraka. Mr Paraka is on notice of the documents and will have the opportunity to cross-examine on them.
   
7. I have considered Mr Paraka’s submissions. I agree that the State has been on notice that he intends to object to the search warrants, or more correctly the bank records produced under the search warrants, for some time now. He indicated that at prior mentions and I understand that he has also directly communicated that through correspondence with the State. It is also the case that the State was, at its request, allowed an opportunity to file an amended pre-trial review statement and yet only included five of the fifteen warrants upon which it now intends to rely. As I understand it the bank records are critical to the State’s case, and therefore all of the warrants upon which it intends to rely at trial should have been included in the pre-trial review statement, and indeed in the brief, in the first place.
   
8. I do not agree, however, that a pre-trial review statement is binding. The purpose of the statement is to provide information required under the Rules. It is an important document but non-compliance with the Rules or related directions should not operate as an end to any proceeding in itself: The State v Keake (2000) N2003 adopting and applying Re Coles Ravenshear [1906] UKLawRpKQB 137; [1907] 1 KB 1 at 4.
   
9. Whilst not contained in the depositions, or referred to in the pre-trial review statement, it does not appear to be in dispute that the additional search warrants and the supporting documents were served on Mr Paraka sometime ago on or about 16 July 2021. He is aware of the documents. The additional search warrants themselves have been admitted on the voir dire.
   
10. Furthermore, the search warrants and the supporting documentation are relevant to Mr Paraka’s objection to the bank records, both with respect to the validity of the warrants, and the scope of the documents produced in response to the warrants. I understand that they are also relevant to his argument that the bank records are inadmissible because they were produced in relation to warrants issued in relation to a separate investigation concerning payments allegedly made to his law firm in 2012 and 2013, which are not the subject of these proceedings.
    
11. It would be artificial and unsatisfactory to proceed to determine arguments about the admissibility of the bank records in the absence of all relevant and admissible material in this regard.
    
12. It is well established that the interests of justice usually require that all relevant and admissible evidence is put before the court in the interests of arriving at the truth. “A criminal trial involves more than the interests of the accused person; it involves also the interests of the community and justice and fairness between the accused and the community”: Birch v The State [1979] PNGLR 75; Keake (supra).
    
13. An experienced prosecutor will review a police brief well in advance of any trial. They will identify the most appropriate charges, the elements of those offences, and the evidence required to establish them to the requisite standard. They will understand their case theory, anticipate the defence case, and identify the weaknesses in their own case. When that is done, it will not be unusual for the State to identify the need to call additional witnesses and/or produce additional documentary evidence. The obligation on the State is always to provide that evidence to the accused a reasonable time ahead of the trial to enable him to know the case he is facing and prepare his defence. Section 526(3)(b) of the Criminal Code specifically provides for that in the case of an indictment presented under that section, as here.
    
14. Having said that there are also occasions when the need for an additional witness or further evidence will not become apparent until shortly before a trial, or sometimes even during the course of a trial. Indeed, whilst it happens rarely, the court itself may call a witness not called by either party if he/she considers in his/her discretion that the course is necessary to the ascertainment of truth or in the interests of justice: Birch; Keake (supra). Order 4 Rule 9 of the Criminal Practice Rules specifically provides for this.
    
15. Ultimately, the question to be determined is what is required in the interests of justice, and in particular, whether it is fair to the accused to allow the State to call an additional witness and/or produce additional documentation in the circumstances of any particular case.
    
16. Having regard to the above, it appears to me that all of the search warrants executed in relation to the investigations into suspected payments made to the accounts of PPL and other lawyers by the Finance Department, and the related supporting documentation, are relevant to the determination of the admissibility of the bank records, which in turn are relevant to the matters ultimately for determination in this case. I see no prejudice to the accused in his defence by the admission of those documents on the voir dire. We are at a very early stage of the proceedings, and indeed of the voir dire itself. The accused remains protected by the law, including his presumption of innocence and his right to a fair trial. Whilst he has been in possession of the materials for some time, if he requires more time to prepare then, of course, he will be granted an adjournment.

______________________________________________________________
Public Prosecutor: Lawyer for the State
Accused: Self Represented