Application of Christopher Haiveta

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 10 November 1998
• Citation: (1998) N1783
• Court: National Court
• Year: 1998
• Judgement Number: N1783

National Court: Woods J

Judgment Delivered: 10 November 1998

N1783

[IN THE NATIONAL COURT OF JUSTICE]

OS 550 OF 1998

APPLICATION OF CHRISTOPHER HAIVETA

Waigani: Woods J

2, 10 November 1998

Judicial Review - application for leave - A Commission of Inquiry - implications - what is affected - scope of review - no basis for leave to review.

G Sheppard for the Applicant

J Kawi for the State

10 November 1998

Woods J. This is an application by the Plaintiff under Order 16 Rule 3 of the Rules of the National Court for leave to seek judicial review of the Further Report of the Sandline Commission of Inquiry. The applicant is seeking certain declarations concerning Reference number 10 of the Commission, including that the term of reference 10 is unconstitutional, and declarations that in making adverse findings against the applicant the Commissioners breached the minimum requirements of natural justice. The applicant is seeking a order to quash the Further Report.

Term of Reference No 10 states:

Whether any secret commission or improper payments were made or other improper advantage given to any person in Papua new Guinea or elsewhere in relation to the Sandline Contract and if so by whom were the commissioner or payments made or advantage given and by whom received.

In September 1998 the Sandline Commission was constituted and in due course undertook investigations and received evidence and heard submissions under their terms of reference and produced a Report to the Prime Minister. However this Report did not include the investigation under Term of Reference 10. This term was then the subject of separate hearings and then the Commissioners produced a Further Report. And that further report contained the following:

In all the circumstances the Commission suspects that Chris Haiveta stood to gain personally from the Sandline Contract. It suspects he received a corrupt and improper payment, but given the seriousness of such a finding and the consequent need for certainty, the Commission is unable to come to a conclusive finding that Mr Haiveta received such a payment on that evidence alone.

The suspicion however was confirmed when a subsequent piece of evidence came to light. That was the evidence that Mr Haiveta bought a house in Port Moresby and a part of the payment was made in Australia with the funds from an account in Switzerland. Mr Haiveta fought tooth and nail through his counsel to stop this evidence going in by cross-examining the Investigating Officer Mr Palmer at length. The basic evidence was not destroyed by the lengthy character assassination and English language gymnastics only confirmed the evidence. We found Mr Palmer to be frank and truthful. Despite the attacks upon him, nothing we heard damages his good character. The Commission has subsequently received bank documentation further confirming the transfer of funds of which Mr Palmer gave evidence. This transaction occurred some three months before the Sandline Contract saga. Nevertheless the Commission believes that it may have been connected to that contract... The Commission has reached the irresistible conclusion that the money Mr Haiveta transmitted from Switzerland was a corrupt and improper payment.

The above are the main features of the application by the Applicant.

The principles of law applicable to an application for leave for judicial review are well settled. See the case Ila Geno & Os V The State [1993] PNGLR 22. The tests are:

Does the applicant have sufficient interest

Does the applicant have an arguable case

Has there been undue delay.

With respect to standing the applicant is clearly mentioned in the Report, he was a person granted the right to be represented at the formal hearings, and he was mentioned in the Report as been suspected of having committed acts which are by their nature may be of a criminal nature. So the applicant satisfies this test.

With respect to delay the Further Report was made on 28th September 1998 and was tabled in Parliament the following day. This application was filed on...