Mao Zeming v Justice Timothy Hinchliffe, CBE, Frank Manue and Patrick Monouluk (2006) N2998

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ
• Judgment Date: 06 February 2006
• Court: National Court
• Citation: (2006) N2998
• Docket Number: OS 239 of 2003
• Year: 2006
• Judgement Number: N2998

Full Title: OS 239 of 2003; Mao Zeming v Justice Timothy Hinchliffe, CBE, Frank Manue and Patrick Monouluk (2006) N2998

National Court: Injia DCJ

Judgment Delivered: 6 February 2006

N2998

PAPUA NEW GUINEA

[IN THE NATIONAL COURT JUSTICE]

OS 239 OF 2003

BETWEEN

MAO ZEMING

Plaintiff

AND

JUSTICE TIMOTHY HINCHLIFFE, CBE

First Defendant

AND

FRANK MANUE

Second Defendant

AND

PATRICK MONOULUK

Third defendant

Waigani : Injia, DCJ

2006 : January 18, 27

February 6

Judicial Review – Leadership tribunal’s Decision – Grounds - Findings of improper Conduct –– Breach of procedure prescribed by s.21(6), s.27(4) and s.29 of Organic Law on Duties and Responsibilities of Leadership – Whether documents contained in Statement of Reasons admissible “evidence” – Whether Leader’s Statement of Reply made to Ombudsman Commission in the course of its investigations contained in Statement of Reasons is admissible “evidence” - Whether tribunal erred in considering Leader’s Statement of Reply which was not formally admitted into evidence – Whether error sufficient for exercise of discretion on judicial review to quash decision of tribunal – Relevant Principles – Interpretation of s.21(6), s.27(4), s.29 of OLDRL and combined effect thereof.

Cases cited in the judgment:

In Re Timothy Bonga N1522 (1997)

Kekeko v Burns Philip (PNG) Ltd [1989 – 89] PNGLR 122

Counsel

H. Leahy for the Plaintiff

H. Kiele for the Respondents

6 February 2006

INJIA, DCJ : The Plaintiff is the former member of the National Parliament for the Tewae-Siassi Open Electorate. He applies for judicial review of the decision of the Leadership Tribunal, constituted by the Respondents (“the Tribunal”) to recommend his dismissal after finding him guilty on nine of twelve allegations of misconduct in office. The dismissal took effect when the Head of State accepted the recommendation.

There are four (4) grounds of review which challenge the procedure employed by the Tribunal to receive and consider the “evidence” in the form of Statements of Reasons prepared by the Ombudsman Commission which was presented to the Tribunal by the Public Prosecutor. The grounds are:

1. The Leadership Tribunal erred in law in that it breached the provisions of section 21 (6) of the Organic Law on the Duties and Responsibilities of Leadership (OLDRL) in that the Tribunal admitted evidence of a statement made by the Plaintiff.

2. The Leadership Tribunal erred in law in that it admitted into evidence two volumes of a book of exhibits compiled by the Ombudsman Commission during the course of its investigation thereby being in breach of section 21(6) of the OLDRL.

3. The Leadership Tribunal erred in law in that it made findings of guilt in respect of Allegations 1(i) and 1(iv) and 4, 5, 7, 8, 9, 10, 11 and 12 when there was no evidence before the Tribunal such that it could make those findings of guilt.

4. The Leadership Tribunal erred in law on its application of the principles of natural justice by wrongly admitting and accepting the Statement of Reasons of the Commission together with the exhibits as evidence.

In support of the application, the plaintiff relies on three affidavits, two of the plaintiff sworn on 13 and 30 May 2003 respectively and one of his counsel, Mr Leahy sworn on 12 September 2005. The Respondents have not filed any affidavit before this Court but rely on the affidavit of Mr D L Cannings (as he then was) which was before the Tribunal. Both counsel filed written submissions and made oral arguments.

I have considered the evidence and submissions. The issues to be decided are substantially legal.

There is no dispute on the procedure followed by the Tribunal in receiving the documentary and oral “evidence” put before it by the Public Prosecutor. In summary, what transpired is this:

5. On 24 February 2003 –

(a) The tribunal commenced its sittings.

(b) The Prosecutor formally presented twelve (12) allegations of misconduct (“charges”) prepared by the Public Prosecutor together with two (2) volumes of Statement of Reasons prepared by the Ombudsman Commission. The proceedings were then adjourned to 5 March 2003 for the plaintiff’s counsel to study the documents.

6. On 12 March 2003 –

(a) The 12 charges were put to the plaintiff and he denied all the charges.

(a) The Prosecutor sought to “tender into evidence” the affidavit of counsel for the Commission, Mr D L Cannings (as he then was), sworn on 11 March 2003, to which reference was made to 108 sets of documents.

In paragraph 5 of his affidavit, Mr Cannings made direct reference to his involvement in supervising the drafting of the Statement of Reasons and compilation of the documents appended to the Statement of Reasons. The tribunal chairman asked counsel for the leader, Mr H Leahy if he objected to the tender of the affidavit and he replied: “No Objection, Mr Chairman.” Consequently, the affidavit which was previously served on the leader, was formally admitted into “evidence”.

(a) In paragraph 6 of Mr Cannings’ affidavit, he said he was listing the 108 documents appended to the Statement of Reasons, for “the purposes of verifying those documents and bringing them into evidence”.

(a) The Prosecutor made direct reference to paragraph 6 of Mr Cannings’ affidavit and the documents appended to the two (2) volumes of Statement of Reasons. He then sought to “formally tender” all those documents described by Mr Cannings.

(a) Mr Leahy objected to the tender of these documents on two basis:

(i) Mr Leahy submitted the date stated by Mr Cannings in paragraph 3 as 7 May 2002 being the date of referral by the Ombudsman Commission to the Public Prosecutor, was inconsistent with the date of the charge document dated 20 February 2002, in that the latter date predated the former. Therefore, the tribunal lacked jurisdiction to deal with the charges. The Prosecutor responded by submitting the figure or year 2002 was a typographical error and the tribunal should correct it by deleting the figure or year 2002 and replacing it with the figure or year 2003.

Mr Leahy submitted the tribunal lacked jurisdiction to amend the charge document.

(ii) Mr Leahy submitted the referral by the Ombudsman Commission to the Public Prosecutor was made against the weight of the Statement in reply made by the leader to the Ombudsman Commission during its investigations. This Statement was contained in the Statement of Reasons. If his reply was duly considered by the Commission and given sufficient weight the referral could not have occurred.

The Prosecutor submitted the tribunal lacked jurisdiction to inquire into the referral by the Ombudsman Commission.

(f) The tribunal overruled both objections and gave brief reasons.

3. On 12 March 2003 – 13 March 2003 –

(a) The Prosecutor relied on the affidavit of Mr Cannings and marked out the affidavit and sought to formally tender 101 of the 108 sets of documents. The tribunal accepted each document into evidence and marked them as exhibits. The plaintiff’s statement of reply which had some 42 appended documents, was not one of those documents sought to be formally tendered and they were not formally admitted into evidence and marked as exhibit.

(a) On 13 March 2003, the prosecution called Mr Iamo Ila, Director of Office of Rural Development. He gave oral evidence and was cross-examined by Mr Leahy.

4. On 13 March 2003 – 14 March 2003 -

The prosecution called Manasupe Zurenuoc who gave oral evidence. He was cross-examined by Mr Leahy.

2. On 14 March 2003 – 17 March 2003 –

The plaintiff called five witnesses who gave oral evidence, namely Tom Horik, Benson Suwang, Asa Zeming, John Gebo and Jason Som. They were cross-examined by the prosecution. The plaintiff did not give oral evidence.

3. On 21 March 2003 – 4 April 2003 –

Both counsel made submissions.

7. On 8 April 2003 –

The tribunal handed down its decision on verdict. The tribunal found the leader not guilty on three counts and found him guilty on nine counts.

Of the four grounds of review ground 1 is on its own and 2, 3 and 4 are related. Ground 1 is straightforward. Ground 2, 3 and 4 raise the same argument. Ground 2 was abandoned at the hearing because it was repetitive of ground 1. All these grounds show the essence of the plaintiff’s case to be one of challenge to the admissibility of the evidence in the form of documents appended to the Statement of Reasons.

In relation to ground 1, Mr Leahy concedes that he did not specifically object to the tender of the documents in the Statement of Reasons on grounds such as under s 21(6) of OLDRL or under ordinary rules of evidence. He also concedes that he did not object to Mr Cannings’ affidavit which made reference to the plaintiff’s Statement of Reply together with the appended documents contained in Volume 2 of the Statement of Reasons. Nonetheless, he submits a tribunal conducting its own inquiry should, as a matter of law, be cognizant of its duty under the law and exercise its discretion to exclude those documents under s. 21(6) under OLDRL. Instead, the tribunal considered the plaintiff’s statement of reply in arriving at its decision without giving the plaintiff opportunity to be heard on it and thereby denied natural justice to the plaintiff.

In relation to ground 3 and 4 which relate to various exhibits contained in the two volumes of Statements of Reasons tendered...