Court dismisses Paraka’s bid to avoid justice

Over the years on PNGi a consistent theme has been observed when members of the elite face criminal charges or leadership tribunals. Despite maintaining their innocence they can spend years, sometimes a decade, trying to prevent the case from going to trial.

While PNGi cannot infer the intent of these individuals, the effect of these tactics are very clear, and very beneficial to those who employ them. Over time prosecutorial and police staff turn over, individuals retire, some pass away, case files get passed on to new colleagues with no experience of the original investigation, witnesses memories fade, some may move overseas, evidence gets lost, the chain of custody gets tainted, etc etc.

All of which means the chance of a guilty verdict being passed slowly, slowly decreases. Not necessarily because the accused is innocent, but because the tools which a prosecutor needs to meet the high evidentiary threshold for proving criminal guilt have gone blunt over time.

Which is why the current tactics being employed by controversial lawyer and would-be politician Paul Paraka, whatever his intent, are in effect gradually eroding the ability of the Public Prosecutor to mount a complete and thorough case on behalf of the public.

The National Court has rejected the first of two attempts by Paraka to have a criminal charge of misappropriation dismissed. But a second court hearing, that will consider a different set of arguments, is yet to take place.

Paraka is attempting to have the civil courts set aside, dismiss, permanently stay or quash an indictment brought against him by the Public Prosecutor.

The indictment alleges Paraka is guilty of misappropriation in relation to millions of kina paid to his law firm from the public purse as part of what have become known as the Paraka Scams. The alleged fraud was first exposed by the Commission of Inquiry in the Department of Finance, which reported in 2009. Although the Commission recommended Paraka, together with a list of other senior figures face criminal prosecution, he is still to face the courts.

In total, Paraka has laid fourteen arguments before the court as to why the indictment should not be allowed to proceed, but has chosen to have them heard in two separate trials.

In the first court hearing, in October, six arguments were presented by Paraka. These arguments were that the indictment and charge of misappropriation are:

1. an abuse of process and have not been prosecuted according to the court rules or within a reasonable time;
2. null and void as they rely on statements from witnesses who are now deceased;
3. unlawful, as the same charges have already been dismissed for a lack of evidence in the District Court;
4. invalid, as there is no prima-facie evidence in support;
5. in breach s.5 of the Audit Act;
6. in breach of a Supreme Court order.

All these six claims have now been resolutely rejected in a National court decision handed down by Justice Berrigan.

The court found that to stay criminal proceedings as an abuse of process was an “extreme remedy” that could only be applied in exceptional circumstances such as unacceptable injustice or unfairness. To do otherwise risked undermining public confidence in the justice system.

The judge rejected all Paraka’s claims of procedural irregularities. These included that he had not been served with a sealed copy of the indictment ‘as ordered by the court’ and in breach of s.526 of the Criminal Code.

The court found s.526 contains NO requirements as to the manner of the service of an indictment and the court had NOT made any order directing how it should be done. In any event, Paraka had failed to show that he had suffered any prejudice as a result of the way the indictment was served.

The court was similarly dismissive of Paraka’s arguments of a failure by the Public Prosecutor to serve him with copies of the evidence on which it intended to rely at trial.

“In this case the accused’s argument is entirely without merit. Even if it were correct, he has failed to demonstrate any prejudice. He has been in possession of the relevant material for a number of years.”

Paraka also argued that the Public Prosecutor has failed to commence his trial within a reasonable period and that eight-months have elapsed since he was served with the indictment.

This, the court found, was an erroneous claim as any delay could not be blamed on the prosecution. Indeed, it is Paraka himself who has been delaying the case. Paraka has not only failed to file his pre-trial review statement, which was due in March, he has also filed various motions challenging his prosecution that have to be determined before any trial can commence; he has also asked for repeated adjournments and amendments when those motions have been listed for hearing.

“The accused’s contention that there has been unreasonable delay on the part of the Public Prosecutor fails. There has been no delay on the part of the Public Prosecutor.”

On the claim of a lack of evidence to support the charge of misappropriation since eight of the witnesses are now dead and one missing; that is, the court found, a matter to be decided at trial.

Paraka’s argument that the Public Prosecutor has expressly stated the same evidence which he now relies upon had been insufficient to support charges against Paraka in the District court, the court found to be simply not true. It was the police, not the Public Prosector, who had laid a different set of charges including 17 counts of conspiracy to defraud, 5 counts of stealing and 5 counts of money laundering against Paraka in the District Court. It was the District Court that had ruled on the insufficiency of evidence in relation to those changes, and far from agreeing with that decision, the Public Prosecutor has set out in detail why he believes the decision was wrong.

The Public Prosecutor is now pursuing a single change of misappropriation and has ‘an absolute power ‘to consider the evidence, and at his/her discretion, indict on a charge ‘of any offence that the evidence appears to warrant’.

On the alleged breach of s.5 of the Audit Act, the court again dismissed Paraka’s argument.

Section 5 gives the Auditor-General the power to refer matters of misappropriation to the Pubic Prosecutor when they are uncovered through a government audit. This, Paraka argued, means that it is only the Auditor general and not the police who are allowed to investigate the use of State funds, and that further, the Public Prosecutor can only prosecute the alleged misappropriation of State funds after a referral from the Auditor-General. As, in his case, there has been no investigation or referral by the Auditor-General, Paraka argued the indictment against him is a nullity and must be quashed.

This argument, said the court, was ‘misconceived’ and the case law Paraka relied on to support his argument was ‘of no assistance’.

The court found the power under s.5 is facilitative, not exclusive and does not prevent the Public Prosector using other avenues to bring a prosecution relating to misuse of State funds and the power under s.5 does nothing to limit the power of the police to investigate any alleged crime.

Paraka’s final argument, that the allegations made by certain witnesses in their statements gave rise to a breach of a Supreme Court order and therefore a charge of contempt, was robustly dismissed by the court.

Any allegation of a breach of an order made by the Supreme Court can only be dealt with by the Supreme Court and therefore the National Court lacked any jurisdiction to even consider the matter said Justice Berrigan. In any event, there was no charge of contempt that had been laid.

The court’s conclusion, summed up the futility of all Paraka’s arguments:

In conclusion, none of the contentions as to delay or unlawfulness have been established. The arguments regarding the Audit Act and “contempt” are misconceived. The accused has failed to establish that the indictment is “a nullity”. The accused has failed to establish that he would be prejudiced in his right to a fair trial. Questions as to the relevance, admissibility or weight of evidence are properly matters for the trial.

The accused has failed to establish that the continuation of the proceedings would involve unacceptable, or any, injustice or unfairness. The accused has failed to establish any basis upon which the indictment should be set aside/dismissed, permanently stayed or quashed. The indictment is properly before the Court. It contains a serious allegation of misappropriation of State monies. There is a need to hear and determine the matter, both in the interests of justice in this case, and the interests of the administration of justice more broadly.

Perhaps fearing the Court was likely to dismiss his ill-conceived and futile arguments, on the eve of its decision being handed down, Paraka made a further attempt at delay.

Despite having made both written submissions and oral arguments before the court and having filed a total of twelve affidavits in support of his objections, on the afternoon before the court sat to deliver its decision, Paraka sought a delay to allow him to submit further and amended submissions.

This, the court ruled, was ‘neither necessary or  appropriate’. It declined to delay the announcement of its decision and it denied Paraka leave to file further amended submissions. Indeed the court found that Paraka had already filed ‘a great deal’ of material most of which was unnecessary; ‘the parties have already been heard’, declared the court.

The dismissal of Paraka’s six argument against his indictment is though not the end of the matter; he still has a further eight arguments that are yet to be heard. These are that the indictment should be quashed on the basis it is calculated to prejudice or embarrass him, that it is an abuse of process and formally defective, and that he has already been acquitted and faces a double punishment.

These arguments, Justice Berrigan has ordered, should be heard ‘at the first available date’.