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Paraka v Kaluwin [2020] PGSC 87; SC1988 (31 August 2020)

SC1988

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO 2 OF 2020 (IECMS)

APPLICATION UNDER SECTION 155(2)(b) OF THE CONSTITUTION

BETWEEN:
PAUL PARAKA
Applicant

AND:
PONDROS KALUWIN, PUBLIC PROSECUTOR
First Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Salika, CJ
2020: 20^th & 31^st August

CRIMINAL LAW - Practice and Procedure –S526 of Criminal Code – Refusal to quash ex-officio indictment – whether the applicant can invoke s.155(2)(b) review powers against the refusal.

Cases Cited:

Yetuin v Dominion Information Systems Ltd (2018) SC 1729
Wartoto v The State (2015) SC 1411
Akui Singgi v The State (1985) PNGLR 280
Avia Aihi v The State (No 1[1981] PNGLR 81
Jonathan Kumba v Kuk Kuli (2000) PNGLR 173
Southern Highlands Provincial Government v Ronald Kalu (2016) SC 1568
State v John Sambeok; 5 August 2015

Counsel:

Mr Paul Paraka in Person
Ms H Roalakona, for the First and Second Respondents

31 August, 2020

1. SALIKA CJ: INTRODUCTION: This is an application for leave for Judicial review of the decision of the National Court made on 6 March 2020. That decision was made by Justice Berrigan in proceedings CR (FC) No. 118 of 2019 in the matter of the State v Paul Paraka.
   
2. The facts of the matter are fully canvassed in the decision of Berrigan J handed down on 6 March 2020. For the purpose of this application the relevant facts are that on 25 April 2019 the Public Prosecutor presented an ex officio indictment under s.526 of the Criminal Code. An objection was taken by the applicant to prevent the Public Prosecutor from presenting the indictment on the grounds that it was an abuse of process and that the Public Prosecutor had no jurisdiction to present the ex officio indictment given the factual background. Her Honour overruled the objection and ordered among others that the indictment signed by the Public Prosecutor pursuant to s. 526 of the Criminal Code be accepted by the National Court.
   
3. It is those orders made on 6 March 2020 that the applicant seeks to review and have them quashed.
   

Jurisdiction

4. The applicant seeks to invoke the Courts special jurisdiction under s.155(2)(b) of the Constitution. This is evident on the heading of his submission for this application titled – “APPLICATION UNDER SECTION 155(2)(b) OF THE CONSTITUTION”.
   
5. Mr Paraka originally planned to make the leave application and the stay application together but decided not to pursue the stay application in the course of his submission.
   
6. The Public Prosecutor through Counsel objected to the application.
   
7. The orders of the National Court of the 6^th March arise out of an application by Mr Paraka objecting to the presentation of an ex-officio indictment. The application objecting to the presentation of the indictment was denied.
   
8. The issue arises at this stage as to whether the Court has jurisdiction to invoke the review powers of the Court under s.155(2)(b) of the Constitution to review the interlocutory decision of National Court in a criminal case, in refusing to quash the ex officio indictment.
   
9. Mr Paul Paraka after the refusal of his application to quash the ex officio indictment on an interlocutory decision had no right of appeal against the interlocutory decision of the National Court of 6 March 2020 pursuant to s.37(15) of the Constitution because he is still innocent of the charge. See s. 37(4) of the Constitution.
   
10. It must be borne in mind by lawyers and their clients that while s.155(2)(b) is a special power of the Supreme Court, in that it has the inherent power to review all decisions of the National Court it is not open ended. A party is entitled to have a decision of a National Court reviewed by way of an appeal pursuant to the Supreme Court Act or by way of an application for judicial review under s. 155(2)(b) of the Constitution or by way of Order 16 of the National Court Rules. There are processes and procedures provided by law and the Supreme Court Rules to follow in order to invoke the review powers of the Court.
    
11. In this application Mr Paraka has come to Court asking the Court to exercise its inherent powers to review the National Court decision refusing an application to quash an ex officio indictment under s.155(2)(b) of the Constitution to grant him leave to review the interlocutory decision of the National Court dealing with Criminal charges against himself.
    
12. In Wartoto v The State (2015) SC 1411 the Supreme Court per Sakora J and Kandakasi J (as he then was) with whom Injia CJ agreed with, said that resorting to judicial review before conviction in Criminal proceedings amounted to an abuse of process. What happened in Mr. Paraka’s case? With respect, his primary right of appeal is still available to him at the end of the trial. Instead he resorted to file a leave application to review an interlocutory decision, which to me with respect amounts to an abuse of process under the Criminal Law practice and procedure.
    
13. Mr Paul Paraka’s case is a criminal case. He is challenging the Public Prosecutor’s powers to present an ex officio indictment which the Public Prosecutor possess under s.526 of the Criminal Code Act. In criminalcases the practice and procedure for appeal and review differ from civil cases. The right to appeal and review in Criminal Case is anchored by operation of s.37(15) and (16) of the Constitution which provide:
    

(15) Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law.

(16) No person shall be deprived by law of a right of appeal against his conviction or sentence by any court that existed at the time of the conviction or sentence, as the case may be.

14. In criminal cases the practice and procedure under the law is that there is no right of appeal or review before conviction. That is the proposition of law established by the Supreme Court in Akui Singgi v The State (1985) PNGLR 280 and later In Application by Herman Leahy (2006) SC855. Is there any right of review before conviction? In my opinion, with respect, s.37(16) of the Constitution gives the applicant the answer and that is, his right to review exists after conviction. Section 37(16) should not be construed to suggest that the word “review” used in that provision only relates to review. The Supreme Court said the word “review” used in s. 37(16) of the Constitution means both appeals and review. In Avia Aihi v The State [1981] PNGLR 81 Kidu CJ said:-
    

I consider that s. 37(16) is not to be used to infer or draw a distinction between appeals and reviews. In my opinion what s. 37(16) does is to ensure that when a person is convicted and sentenced and at the time of such conviction and sentence there existed a right of appeal, he should not be deprived by any law of such a right. It does not in my view create a distinction between a right of appeal and a right of review.

15. In Application by Herman Leahy (2006) SC855 the Supreme Court said that s.22 of the Supreme Court Act does not provide a right to appeal to persons aggrieved by a judgement of the National Court in refusing to quash an indictment. The court said:-
    

“The applicant had no constitutional right that he could invoke, to appeal against the National Court’s judgement. The only right of appeal ((or review) the Constitution gives is for persons convicted of an offence. The appellant was not convicted of any offence, so he had no constitutional right to appeal. Any right to appeal had to be founded in statute.”

16. Applying those principles in this case Mr. Paraka has not been convicted and therefore has no right of review until after conviction. At the material time he is innocent of any charge or charges laid against him. It may be argued however that the power to review under s. 155(2)(b) of the Constitution is unique in that it gives the Supreme Court inherent power to review all judicial acts of the National Court. The decision of 6 March 2020 is a judicial act and as such s.155(2)(b) of the Constitution may be invoked. I am reminded by the decision in Avia Aihi v The State (No.1) (1981) PNGLR 81 that the power to review under s.155(2)(b) is a discretionary power. The Aihi decision is further supported by the Supreme Court in Jonathan Kumba v Kuk Kuli (2000) PNGLR 173 where the Court said:-
    

“the power of review by the Supreme Court of a National Court decision under s.155(2)(b) is discretionary. In that regard, the Supreme Court has the inherent discretionary power to hear and determine the application. The discretion is unfettered.”

17. The review powers of the Court in s.155(2)(b) of the Constitution is available only according to law. In Criminal cases the law relating to appeals and review can only be exercised where a person is aggrieved by a conviction or sentence.
    
18. In Herman Leahy (Supra) the Court identified three categories of cases which fall into the review jurisdiction under s.155(2)(b). They are:-
    

(i) where parties have allowed a statutory right of appeal to expire as in Avia Aihi (supra) case. (It is not applicable here.)

(ii) where a right of appeal is prohibited or limited by law as in Election Petition cases. (This case could fall into this category in that the applicant has no right of appeal or review until after conviction which could be argued is a limitation of his right to invoke the appeal or review process otherwise it is not applicable here.)

(iii) there is no other way of going to the Supreme Court. (In this case the applicant can only go to the Supreme Court if he is convicted of the charge. The time for going to the Supreme Court may never occur. I cannot speculate anything here. Therefore, it is not applicable here).

19. The purpose of an application for leave was articulated by Injia CJ in Southern Highlands Provincial Government v Ronald Kalu (2016) SC 1568 where he said:-
    

“The purpose of this application for leave for judicial review is not to conduct a detailed examination, assessment and determination of the merits of the proposed grounds of review and the material placed before the court. However, if upon a quick perusal of the proposed grounds of the review and the material placed before the court by both parties, it is shown that the application is clearly without merit because the application does not raise any serious issues to be tried by the full Court, it is within this Court's discretion to stop the review from proceeding any further and the Court should not hesitate to do so. That indeed is the purpose of this leave process.”

With respect I agree with that proposition of the law as to the purpose of an application for leave.

20. The circumstances in this case is that the time to appeal has not been reached. The applicant here will have his day to appeal. He might not even have to appeal or apply for a judicial review. It is all premature and speculative and as such is an abuse of the process of the Court.
    
21. In the context of criminal proceedings an accused is entitled to a fair trial and is entitled to the full protection of the law. (See s.37(1) and (3) of the Constitution. While the right of the accused are specifically stated and protected under the Constitution on one side, the interest of the public and the State must also be observed. It is also important at the same time to protect the interests of justice and safeguard public confidence and the administration of justice too on the other hand. The Courts duty is to ensure that a fair and common balance is achieved. To that end it is only proper that this Court recognizes the provisions of s.37(15) and (16) of the Constitution and the Supreme Court authority of Application by Herman Leahy (2006) SC 855. This Court has a duty to prevent an abuse of process.
    
22. The applicant among other case precedents to support his application relied on the case of the State v John Sambeok; 5 August 2015, an unreported decision of myself sitting as a National Court. In that case I quashed that ex officio indictment presented before me, upon an application to quash the indictment, on the basis that the complainant had no standing to lay a complaint. In that regard that case is distinguished from the facts in this case.
    
23. Having now read the authorities, I refuse the application for leave for the following reasons:
    
    • (i) is it in the interest of justice to grant leave?
      

There is no right of appeal or review from interlocutory decision of the National Court in criminal cases until the trial is over and the accused is convicted. This criteria does not arise at this stage but will if convicted. In the interest of justice and fairness that the application for leave to review be refused.

(ii) are there cogent and convincing reasons and exceptional circumstances to grant leave?

With respect the criteria does not arise at this stage. Even at this stage the court still has a discretion to refuse or grant leave. There are no convincing or exceptional reasons to grant leave.

(iii) are there clear legal grounds meriting a review of the decision? No.

The decision of the National Court on 6 March 2020 is an interlocutory decision. The full rights of appeal and review are still intact until after the trial and after conviction and sentence if it gets to that stage. It is premature at this stage to contemplate the final decision of the National Court. The application at this stage to me, with respect is premature and is with respect an abuse of process.

24. Accordingly, I exercise the discretionary power of the Supreme Court to refuse the application.
    
25. Application for leave is refused.
    

________________________________________________________________
Applicant in person
Public Prosecutor: Lawyers for the First Respondent
Public Prosecutor: Lawyers for the Second Respondent