The Hon Mao Zeming, MP v Justice Timothy Hinchcliffe, CBE and Frank Manue and Patrick Monouluk

• Jurisdiction: Papua New Guinea
• Judge: Jalina, Sevua & Gavara—Nanu JJ
• Judgment Date: 02 May 2005
• Docket Number: SCM No 09 of 2003
• Citation: (2005) SC791
• Court: National Court
• Year: 2005
• Judgement Number: SC791

Full Title: SCM No 09 of 2003; The Hon Mao Zeming, MP v Justice Timothy Hinchcliffe, CBE and Frank Manue and Patrick Monouluk

National Court: Jalina, Sevua & Gavara—Nanu JJ

Judgment Delivered: 2 May 2005

SC791

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCM NO. 09 OF 2003

BETWEEN:

The Hon Mao Zeming, MP

Appellant

AND:

Justice Timothy Hinchcliffe, CBE

First respondent

AND:

Frank Manue

Second Respondent

AND:

Patrick Monouluk

Third Respondent

Waigani: Jalina, Sevua & Gavara – Nanu JJ

2003: 28th November

2005: 02nd May

Administrative law – Judicial review – Application for leave – Arguable case – Grounds of application for leave raising arguable issues – Leave granted - National Court Rules O 16 r 3.

Cases cited:

NTN –v- Board of the Post and Telecommunication Corporation [1987] PNGLR 70

Olasco Niugini v Kaputin [1986] PNGLR 244

Manjin v Post and Communications Corp. [1990] PNGLR 288

Ila Geno & 2 ors v The State [1993] PNGLR 22

Ombudsman Commission v Donohoe [1985] PNGLR 348

Counsel

G.J. Shepherd for the Appellant

D.Cannings for the Respondents

02nd May 2005

THE COURT: The Appellant was charged under the Organic Law on the Duties and Responsibility of Leadership (The Organic Law) with 12 counts of Misconduct in Office. A tribunal comprising the First Respondent as Chairman and the Second and Third Respondent as members was appointed by the Chief Justice on 6th February 2003 by virtue of the powers conferred on him by s.27 (7) of the Organic Law to inquire into and determine such allegations of misconduct by the Appellant.

From the Statement filed in the National Court on 13th May 2003 by the Appellant under O 16 r 3 (2) (a) of the National Court Rules seeking leave to apply for judicial review (see Appeal Book pp 18-20), it appears that on 12 March 2003, after the plea of the Appellant was taken through his counsel, the Public Prosecutor sought to tender into evidence through the affidavit of Mr David Cannings (then counsel to the Ombudsman Commission), dated 11 March 2003, two bound volumes of documents which the prosecutor described as the “Statement of Reasons”.

Counsel for the Appellant objected on two grounds:

1 On the face of the record before the Tribunal, the reference by the Public

Prosecutor predated the reference from the Ombudsman Commission; and

2 The Leader’s own explanations with regard to the misconduct charges were

not given due regard such as would diminish the reasons for referral.

The Tribunal overruled the objections of the Appellant and allowed the affidavit of Mr Cannings into evidence. The affidavit made reference to all the documents, which made up the two bound volumes referred to earlier as the “Statement of Reasons”. Those documents included a reply the Appellant made to the Ombudsman Commission’s letter to him dated 7 December 2001. The Tribunal

then proceeded to mark each document (including the Appellant’s written reply referred to in the affidavit of Mr Cannings) as exhibits of evidence for the purposes of the (Tribunal) hearing.

The prosecution called only two (2) witnesses to give oral evidence. They were Mr. Iamo Ila, Acting Deputy Secretary, Office of Rural Development and Mr. Manasupe Zurenuoc, Provincial Administrator, Morobe Province. The Prosecution relied heavily on the “Statement of Reasons” prepared by the Ombudsman Commission and brought into evidence through the affidavit of Mr.Cannings.

The Tribunal later made findings of guilt against the Appellant convicting him of nine (9) of the twelve (12) allegations of Misconduct in Office. In it’s determination of guilt against the Appellant, the Tribunal also relied heavily on the evidence contained in the “Statement of Reasons”. It also took into account the Appellant’s reply to the Ombudsman Commission.

The Appellant’s application in the National Court seeking leave to apply for judicial review were based on four (4) grounds (see Appeal Book p 33):

“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 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 Organic Law on Duties and Responsibilities of Leadership.

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.”

At the hearing of the application for leave the only issue was whether or not the Appellant had an arguable case as other considerations in applications for leave such as locus standi, undue delay and exhaustion of administrative remedies were not in issue.

On 10th June 2003, the National Court refused to grant leave on the basis that the Appellant did not have an arguable case.

On 15th July 2003, the Appellant filed his appeal to the Supreme Court by way of a Notice of Motion in accordance with O.10 r.1 of the Supreme Court Rules.

The Grounds of Appeal are set out in Paragraph 3 of the Notice of Motion. It contains 5 grounds from paragraph (a) to (e). However, during the hearing of the appeal, the Appellant abandoned grounds 3 (d) and (e) and pursued only grounds 3 (a), (b) and (c) which are as follows:

“3. GROUNDS

a The Learned Judge erred in law in finding that there was no arguable case to support the Appellants’ application for leave to apply for judicial review under O 16 r 3 of the National Court Rules when the Leadership Tribunal appointed under section 27 (7) (e) of the Organic Law on Duties and Responsibilities of Leadership (“the Organic Law “) had exceeded it’s powers or alternatively committed an error of law or alternatively, committed a breach of natural justice, or alternatively, reached a decision which no reasonable tribunal could have reached or alternatively abused its powers.

b the Learned Judge erred in law when he found that no arguable case had been made out for leave to apply for judicial review under O 16 r 3 of the Rules of the National Court when he considered and interpreted provisions of the Organic Law and made arguable findings on questions of law in:

iii finding that the Appellant’s application for leave for judicial review was distinguishable from the case of In the Matter of Leadership Tribunal and Timothy Bonga and Hon. Maurice Sheehan, Mr Marcus Bayam and Himson Waninara unreported National Court decision N1512 (“Bonga case”) on the basis that in the Bonga case the Prosecutor “relied entirely “ on the statement of reasons when there was other evidence that was analysed by the Learned Judge

iv finding that the Leadership Tribunal is not bound by legal formalities or the rules of evidence pursuant to s. 27 (4) of (sic) Organic Law and therefore the Leadership Tribunal was entitled to rely on the exhibits which were part of the statement of reason when it is at the time when the tribunal is calling evidence pursuant to s. 29 of the Organic Law that s. 27 (4) of the Organic Law is applicable.

v finding that Section 27 (4) of the Organic Law is relevant to the question of determining the nature and the purpose of statement of reasons under s. 27 (1) and (2) of the Organic Law when section 27 (4) has no relevance to such determination.

vi finding that Section 21 (6) of the Organic Law does not apply to the Appellant’s right to be heard under section 20 (3) of the Organic Law when Section 21 (6) applies with only one qualification (ie”except on the trial of any person for perjury in respect of his sworn testimony”) to any inquiry or any proceeding before the Ombudsman Commission.

vii finding that objections under Section 21(6) of the Organic Law to the tendering into evidence before the Leadership Tribunal of the responses provided by the Appellant pursuant to the exercise of his rights under Section 20 (3) of the Organic Law should not be objected to if such responses are exculpatory of the Appellant’s conduct as a Leader when no such qualification appears in section 21 (6) of the Organic Law

viii finding that there was no objection taken at the tribunal hearing to the affidavit of David Lionel Cannings being tendered into evidence when objection was taken at the Leadership...