SC2439

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 20 OF 2023

PAUL PARAKA

V

THE STATE

Waigani: Cannings J
2023: 15th, 16th August

SUPREME COURT – practice and procedure – appeal against conviction in National Court – application for stay of National Court criminal proceedings pending determination of appeal against conviction – application for stay after conviction and before sentence – Supreme Court Act, s 5 – whether Court has jurisdiction to grant stay – whether power to grant stay can be exercised by single Judge of Supreme Court – whether stay of National Court proceedings should be granted.

The appellant was convicted in the National Court of the crime of misappropriation under s 383A of the Criminal Code and granted bail pending sentence. He appealed to the Supreme Court against his conviction. He applied for a stay of the verdict of the National Court before he was sentenced.

Held: 

(1)	The Supreme Court has jurisdiction under ss 5(1)(b) and 19 of the Supreme Court Act to grant a stay of National Court proceedings where an appeal is pending before the Supreme Court. That jurisdiction may be exercised in both criminal and civil proceedings.

(2)	The power to grant a stay may be exercised by a single Judge of the Supreme Court, as distinct from the full court of the Supreme Court.

(3)	The power to grant a stay of criminal proceedings in the National Court should be exercised sparingly and only where it is in the interests of justice to grant a stay, in extreme and exceptional circumstances, given the overwhelming public interest in ensuring that criminal proceedings are progressed efficiently and fairly in accordance with law and without interruption by collateral proceedings or applications that tend to delay or stall the National Court proceedings.

(4)	If an appellant can show that there were obvious or patent errors evident in the record of the National Court that went to the jurisdiction of the National Court to make the order that it did, those could be extreme and exceptional circumstances warranting a stay of the verdict, before sentence, pending hearing and determination of the appeal against conviction.

(5)	The present application was properly before the Supreme Court and was able to be heard and determined by a single Judge of the Court. However, the appellant failed to demonstrate any obvious or patent error in the record of the National Court that meant that the National Court exceeded its jurisdiction in finding him guilty of misappropriation. The grounds put forward by the appellant in support of his stay application are all grounds of appeal included in his notice of appeal against conviction. He is entitled to argue those grounds of appeal at the hearing of the appeal.

(6)	The appellant continues to be entitled to the full protection of the law during the balance of the criminal proceedings in the National Court. If he is aggrieved by the sentence he may seek leave to appeal against it. If a custodial sentence is passed against him, he may apply for bail under s 11 of the Bail Act.

(7)	The application for a stay of verdict and the proceedings of the National Court was refused. 

Cases Cited

The following cases are cited in the judgment:

Maladina v The State (2015) SC1572
McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279
The State v Paraka (2023) N10273
Wartoto v The State [2015] 1 PNGLR 26

Counsel

P Paraka, the appellant, in person 
H Roalakona & S Mosoro, for the Respondent 

16th August, 2023

1.      CANNINGS J: The appellant, Paul Paraka, was convicted on 26 May 2023 in the National Court of five counts of misappropriation under s 383A of the Criminal Code (The State v Paraka (2023) N10273). He has always been on bail and was granted bail after conviction, pending sentence. He lodged an appeal against conviction in the Supreme Court on 4 July 2023. 

2.    He applies, by amended application filed 25 July 2023, for a stay of the verdict of the National Court before he is sentenced so that his appeal against conviction can be heard and determined. A sentencing hearing is due to take place on 21 August 2023.

3.    He makes the stay application under ss 5(1)(a) and (b) and 19 of the Supreme Court Act.

4.     Section 5 (incidental directions and interim orders) states:

(1)	Where an appeal is pending before the Supreme Court—

(a)	a direction not involving the decision on the appeal; or
(b)	an interim order to prevent prejudice to the claims of the parties; or
(c)	an order in any proceedings (other than criminal proceedings) for security for costs; or
(d)	an order dismissing an appeal in any proceedings (other than criminal proceedings) for default in furnishing security; or
(e)	an order admitting an appellant to bail,

may be made by a Judge.

(2)	A direction or order made under Subsection (1) shall be deemed to be a direction or order of the Supreme Court.

(3)	A direction or order made under Subsection (1) may be discharged or varied by the Supreme Court.

5.    Section 19 (stay of proceedings on appeal) states:

Unless otherwise ordered by the Supreme Court or a Judge, an appeal, or an application for leave to appeal, to the Supreme Court does not operate as a stay of proceedings.

ARGUMENTS

6.    The appellant submits that the trial judge made so many errors of law during his trial, including basing conviction on evidence that was ruled to have been unlawfully obtained, and in effect without evidence, that he was denied a fair trial in accordance with law. He challenges the validity of the indictment containing the five charges of which he was convicted. He claims that the trial judge exhibited bias against him and made findings of fact that were not available to be made by any reasonable court. He urges the court to grant an order staying the verdict, so that his appeal against conviction can be heard and determined. 

7.    He submits that a stay is necessary in the interests of justice. If there is no stay and he is sentenced, he is in jeopardy of being imprisoned and if that happens his reputation as a senior lawyer in the community will be irreparably damaged and his livelihood and his family and his personal health will suffer; and that his interests will be prejudiced in a way and to an extent that cannot be undone if his appeal against conviction is upheld his conviction is quashed. 

8.    The State opposes the application for a stay of the National Court proceedings and argues that the appellant can argue all of the grounds underlying the stay application in his appeal against conviction. To grant a stay would be to make an unprecedented order, which would set a dangerous precedent and unnecessarily disrupt the criminal process in the National Court. 

ISSUES

9.    The first question to address is whether the Supreme Court has power to grant a stay. Secondly, if it has the power, can it be exercised by a single Judge? Thirdly, in what circumstances should a stay be granted? Finally, should a stay be granted in this case?

1 	DOES THE COURT HAVE JURISDICTION TO GRANT A STAY?

10.    Yes, the power to grant a stay of National Court proceedings, in cases where there has been an appeal to the Supreme Court, exists under ss 5(1)(b) and 19 of the Supreme Court Act (McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279). That jurisdiction may be exercised in both criminal and civil proceedings. 

11.    It is rare, perhaps unprecedented, for a stay of a verdict of guilty to be granted in criminal proceedings, and this contrasts with National Court civil proceedings, where the granting of a stay of the proceedings pending an appeal is not uncommon. However there is no reason in principle that a stay of criminal proceedings pending an appeal against conviction cannot be granted by the Supreme Court (Maladina v The State (2015) SC1572). 

2 	CAN THE POWER TO GRANT A STAY BE EXERCISED BY A SINGLE JUDGE OF THE SUPREME COURT?

12.    The stay of a guilty verdict and National Court criminal proceedings including a sentencing hearing and the passing of sentence, where an appeal is pending before the Supreme Court, is properly regarded as  “an interim order to prevent prejudice to the claims of the parties” (in that it prevents prejudice to the claim of the person convicted) under s 5(1)(b) of the Supreme Court Act. 

13.    Such an order “may be made by a Judge” (as distinct from the full court of the Supreme Court) under s 5(1). So, yes, the power to grant a stay may be exercised by a single Supreme Court Judge. 

3 	WHAT MATTERS SHOULD BE TAKEN INTO ACCOUNT WHEN DECIDING WHETHER TO GRANT A STAY?

14.    The power to grant a stay is a discretionary matter. There is only one reported case that has been brought to my attention, which addresses the question of the considerations to be taken into account when a stay of National Court criminal proceedings is sought: Maladina v The State (2015) SC1572. The appellant, Mr Maladina, was convicted in the National Court of various fraud-related offences and appealed against his conviction, and while his appeal was pending he applied for an order to stay the criminal proceedings in the National Court pending determination of the appeal against conviction. His stay application was heard by a single Judge, Injia CJ. His Honour ruled that, rather than considering all the multiple factors to be taken into account under the principles of the McHardy case, which were developed to deal with stay applications pertaining to civil proceedings in the National Court, it was preferable to take a holistic approach and consider the totality of the relevant factors and circumstances in order to dispense substantive justice in the circumstances of the particular case.

15.    His Honour explained the competing interests at play when hearing an application to stay National Court criminal proceedings. His Honour’s explanation is pertinent and profound:

14.    On the one hand, the interest of justice demands that the appeal against conviction should be accorded normal due process to be argued and determined on its own merit and once a decision is made on the appeal, its decision is given full effect. In order to preserve prejudice to the appellant's claim or prayer for relief, he should not be subjected to a process that will frustrate or complicate his right to claim that appropriate relief and if granted to give effect to it.  There is no question that he will be sentenced following the conviction. Whatever the sentence may be, he will have been subjected to be sentenced and if he were successful in the appeal against conviction, he will have suffered irreparable harm in respect of that portion of the punishment already served. 

 15.     On the other hand, he has been convicted. Sentence will have to follow suit as a matter of law. The state of the law and preponderance of judicial thinking reflected in the cases I have referred to, though obiter they appear to be, it will require a very clear case of a sense of injustice to persuade me that the scales of justice should tilt in favour of the appellant.  When he is sentenced, he may file a separate appeal against sentence. He will have recourse to an application to stay the execution of the sentence by way of a bail application if it were a custodial sentence. This could be done in quick time so that the amount of time spent under the sentence is minimized. For this reason, in terms of being subjected to the process, yes, he will be sentenced but the service of that sentence could be stayed by grant of bail thereby reducing or eliminating the impact of that sentence. Conviction and sentencing will proceed according to law. There is no prejudice to his right to defend the charge. That has been done. He has a right to contest the punishment. The opportunity is there. When sentenced, he has a right to appeal the sentence. That right will be afforded. 

16.    His Honour concluded that the interests of justice favoured continuation of the trial to its logical conclusion, ie the passing of sentence:

17.    The appellant's case on appeal against conviction and the prayer for relief, though he has an arguable case, is conjecture. When he is sentenced and does not win the appeal against conviction, the sentence will be adjusted to take into account the sentence already served. If he wins the appeal against conviction, after sentence is passed, even then, if he has been wrongfully convicted and sentenced, his recourse may be in civil remedy or Constitutional remedy in damages. 

18.    Balancing all these considerations, notwithstanding the findings I have made in his favour, the interest of justice being the most critical and dominant consideration favours the continuation of the trial to its logical conclusion as required by law. The respondent [the State] has secured a conviction for which it is entitled to the balance of the judgment on penalty.  These two considerations weigh heavily in persuading me that I should refuse the application.

17.    I adopt the approach outlined in Maladina: the ultimate test is whether it is in the interests of justice to grant a stay of the criminal proceedings, pending the appellant’s appeal against conviction. In ascertaining where the interests of justice lie, the power to grant a stay of criminal proceedings in the National Court should be exercised sparingly and only where it is in the interests of justice to grant a stay, in extreme and exceptional circumstances. 

18.    The reason I use the words “extreme and exceptional” is that there is an overwhelming public interest in ensuring that criminal proceedings are progressed efficiently and fairly in accordance with law and without interruption by collateral proceedings or applications that tend to delay or stall the National Court proceedings. Recognition of this fundamental public interest was at the centre of the reasoning of the five-Judge (Injia CJ, Sakora J, Kirriwom J, Kandakasi J, Davani J) Supreme Court decision in Wartoto v The State [2015] 1 PNGLR 26, a case which was an unsuccessful appeal by an accused person facing trial for misappropriation against a decision of the National Court, which had refused his application for a permanent stay of the National Court criminal proceedings. 

19.    In my view it is only if an applicant for a stay can show that there are obvious or patent errors evident in the record of the National Court that go to the jurisdiction of the National Court to make the order that it did, that there would be extreme and exceptional circumstances warranting  a stay of the verdict, before sentence, pending hearing and determination of an appeal against conviction.

4 	SHOULD A STAY BE GRANTED IN THIS CASE?

20.    The present application is properly before the Supreme Court. It has been heard and can be determined by a single Judge of the Court. The application is in a proper form. There is no abuse of process apparent.

21.    However, the appellant has failed to convince me that there are any obvious or patent errors in the record of the National Court that show that this is an extreme and exceptional case that render it being in the interests of justice to grant a stay of the verdict of the National Court. There are no good and clear grounds for saying that the National Court exceeded its jurisdiction in finding the appellant guilty of misappropriation. 

22.    He is concerned that he faces the prospect of being sentenced to a custodial term. He has given evidence that he has an ongoing serious medical condition that has been exacerbated by the National Court criminal proceedings. He is concerned about the effect of any sentence on the welfare of his family and his livelihood as a lawyer. The genuineness of these concerns has not been questioned by the State. Nor does the Court question their genuineness. However, these are all matters that can be raised in the sentencing hearing before the National Court. The matters can also be raised in support of any application for leave to appeal against the sentence.

23.    The grounds put forward by the appellant in support of his stay application are all grounds of appeal included in his lengthy notice of appeal against conviction. He is entitled to argue those grounds of appeal at the hearing of the appeal.

24.    The appellant continues to be entitled to the full protection of the law during the balance of the criminal proceedings in the National Court, and in all Supreme Court proceedings pertaining to his conviction and sentence. If he is aggrieved by the sentence he may seek leave to appeal against it, in accordance with s 22(d) of the Supreme Court Act. If a custodial sentence is passed, he may apply for bail under s 11 of the Bail Act.

25.    The application for a stay of verdict and the proceedings of the National Court will be refused. 

ORDER 

1.	The amended application filed 25 July 2023 for a stay of the verdict of the National Court in CR(FC) 118 of 2019, The State v Paul Paraka, dated 26 May 2023, is refused.

2.	For the avoidance of doubt the National Court proceedings in CR(FC) 118 of 2019, The State v Paul Paraka, shall continue in accordance with directions of the National Court. 
_____________________________________________________________
Public Prosecutor: Lawyers for the Respondent