Eddie Gabir and Others v Richard Koronai, Sandaun Provincial Government and The National Public Services Commission [1988-89] PNGLR 406

• Jurisdiction: Papua New Guinea
• Judge: Bredmeyer J
• Judgment Date: 02 October 1989
• Court: National Court
• Citation: [1988-89] PNGLR 406
• Year: 1989
• Judgement Number: N761

Full Title: Eddie Gabir and Others v Richard Koronai, Sandaun Provincial Government and The National Public Services Commission [1988-89] PNGLR 406

National Court: Bredmeyer J

Judgment Delivered: 2 October 1989

N761

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

GABIR AND OTHERS

V

KORONAI, SANDAUN PROVINCIAL GOVERNMENT AND NATIONAL PUBLIC SERVICES COMMISSION

Wewak & Waigani

Bredmeyer J

14 April 1989

12 May 1989

23 June 1989

2 October 1989

STATE SERVICES — Public servants — Disciplinary offences — Disciplinary tribunal constituted by Departmental Head — The hearing of charges — Evidence on — Not bound by rules of evidence — Must rely on cogent evidence — Duty to observe rules of natural justice — Fair procedure — Freedom from bias — Public Services (Management) Act 1986, ss 45 (1), 47 (5).

ADMINISTRATIVE LAW — Natural justice — Duty to observe — Public Service — Disciplinary tribunal constituted by Departmental Head — Scope of duty — Fair procedure — Freedom from bias — Decision to be made on cogent evidence — Public Services (Management) Act 1986, ss 45 (1), 47 (5).

ADMINISTRATIVE LAW — Particular tribunals — Disciplinary tribunal constituted by Departmental Head — Practice and procedure — Evidence — Duty to observe rules of natural justice — Onus of proof — Public Services (Management) Act 1986, ss 45 (1), 47 (5).

Section 45 (1) of the Public Services (Management) Act 1986 (the Act) creates a disciplinary offence as follows:

"An officer who:

...

(c) except with the consent of the Head of State, acting on advice, or of an officer authorised for the purpose by the Head of State, acting on advice, publicly comments on the administrative action or the administration of a Department;... is guilty of a disciplinary offence and is liable to be dealt with and punished..."

By s 47 (5) of the Act, where a disciplinary charge is made, the Departmental Head is required to consider "reports relating to the offence and charge, the reply and explanation (if any) of the officer charged and any further report that he thinks necessary" and then to form an opinion as to whether the charge has been sustained. The Act contains no provisions relating to what kind of evidence is admissible.

Held

(1) A Departmental Head hearing a disciplinary charge under the Act:

(a) is not a court of law and is not bound by the technical rules of evidence which apply to a court;

(b) may hear any evidence, including hearsay evidence, which is sufficiently cogent to be convincing;

In re James Eki Mopio [1981] PNGLR 416 at 418-419, followed.

(c) must observe the rules of natural justice:

(i) by basing his decision on evidence which tends logically to show the existence or non-existence of facts relevant to the issue to be determined and disregarding worthless evidence;

R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 487-488, followed.

(ii) by adopting procedures which are fair in all the circumstances; and

Wiseman v Borneman [1969] 3 All ER 275 at 277, followed.

(iii) must be free of bias and must be seen to be free of bias; and

(d) should come to a decision: he should not later supplement, embellish or enlarge it lest he give the impression of being partisan.

(2) The standard of proof in proceedings for disciplinary charges under the Act, which can result in dismissal from office, is higher than the civil standard of proof on the balance of probabilities and a little lower than the criminal standard of proof beyond reasonable doubt.

In re James Eki Mopio [1981] PNGLR 416, followed and applied.

(3) In the circumstances, where a number of officers had been found guilty of offences contrary to s 45 (1) (c) of the Act, demoted one level and transferred out of their Province;

(a) there had been errors of law in:

(i) making findings of guilt on matters relevant to punishment only;

(ii) making findings of guilt based on worthless evidence;

(b) there had been errors of law and breaches of natural justice in not reading all of the relevant statements available to the inquiry sufficient to vitiate the decision; and

(c) there had been a breach of natural justice in the investigating officer socialising with the officers charged after the conduct of interviews was concluded and before his report was made.

Cases Cited

Dellow's Will Trusts, Lloyds Bank Ltd v Institute of Cancer Research [1964] 1 All ER 771; [1964] 1 WLR 451.

Mopio, James Eki, In re [1981] PNGLR 416.

R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456.

Wiseman v Borneman [1969] 3 All ER 275; [1969] 3 WLR 706.

Judicial Review

This was the hearing of an application for judicial review of a decision of a Departmental Head on disciplinary charges under the Public Services (Management) Act 1986.

Counsel

A Jerewai, for the plaintiffs.

L Tilto, for the defendants.

Cur adv vult

2 October 1989

BREDMEYER J: The seven plaintiffs are senior public servants in the West Sepik or Sandaun Provincial Government and the first defendant, Richard Koronai, is the Secretary of that Province and as such is their Departmental Head. On 25 January 1989, he judged the seven plaintiffs guilty of disgraceful and improper conduct, an offence under s 45 (1) of the Public Services (Management) Act 1986 and ordered their demotion one level in the public service and ordered that they be transferred to another province. The case before me is an application for judicial review seeking to quash those orders.

In order to understand Mr Koronai's decision, it is necessary to sketch in the background. On 1 October 1987, the Post-Courier published an article claiming that there was a sex racket involving senior public servants in Vanimo and West Irianese refugee women. The article claimed that senior public servants were having sexual relations with women from the refugee camps and threatening them with deportation if they did not co-operate. The Government acted promptly on the allegations and the Department of Foreign Affairs investigated them and published a report on them dated 13 October 1987. The officers who compiled the report of the Department of Foreign Affairs found it very hard going. The inmates of the refugee camps generally refused to discuss the issue and denied any knowledge of sexual relations between refugee women and public servants. Similarly, the Government officers interviewed denied any knowledge of sexual affairs. Some community leaders around town did express concern about the rumours and wer able to pass on the rumours but were unable to give any first-hand evidence of any sexual relations between refugee women and public servants. The report concluded that, in spite of the lack of evidence on any organised racket, the team found evidence of incidental encounters between female refugees and two public servants, Mr Danny Lane and Mr Eddie Gabir, and recommended that further investigations be carried out on these two officers. The report also pointed out the very strong personal differences between public servants working in Vanimo and that these differences may have contributed to the sex scandal being blown out of proportion.

A further investigation was ordered by the Minister for Provincial Affairs and a committee of four men consisting of three public servants and a village leader was appointed to carry out the task. This committee was led by Mr Peien Aloitch. They carried out their investigation between 18 April and 13 May 1988. Their report is headed "An Investigation Report on the Sex Scandal Issue at Blackwater Refugee Holding Camp". I will refer to that report as the Sex Scandal Committee Report and to that committee as the Sex Scandal Committee. The public servants involved all came from the Department of West Sepik. That committee found that scandalous activities involving public servants and refugee women were occurring. They found that senior public servants were procuring women from Blackwater Camp for the purposes of prostitution. The committee named the public servants involved as Leo Saulep, Danny Lane, Dr Marcus Woibun, Willie Ao, Eddie Gabir, Thomas Aitoney and Eugene Fofoe. The committee recommended that public srvice disciplinary charges be laid against these men and that, should they be convicted, they be dismissed or be demoted to lesser jobs and be transferred out of the West Sepik Province.

The Sex Scandal Committee based its report on interviews with a number of witnesses. They interviewed three refugee women, two of whom admitted sexual relations with several public servants. Their main interviewees were two prominent West Irian men, one Nick Nere, now a naturalised Papua New Guinea citizen, and the other Eko Mason. Each of these men gave evidence that certain public servants had sexual relations with individual refugee women, for example, Nick Nere said that the public servant, Jerry Poivi's "favourite sex partner was a West Irianese refugee Octavina Sibi". Poivi is one of the plaintiffs in this case. They also gave...