Timothy Bonga v Honourable Justice Maurice Sheehan, Mr Marcus Bayam—SPM and Mr Himson Waninara—SPM and The Independent State of Papua New Guinea [1997] PNGLR 452

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ
• Judgment Date: 04 March 1997
• Court: National Court
• Citation: [1997] PNGLR 452
• Docket Number: In the Matter of a Leadership Tribunal
• Year: 1997
• Judgement Number: N1512

Full Title: In the Matter of a Leadership Tribunal; Timothy Bonga v Honourable Justice Maurice Sheehan, Mr Marcus Bayam—SPM and Mr Himson Waninara—SPM and The Independent State of Papua New Guinea [1997] PNGLR 452

National Court: Kapi DCJ

Judgment Delivered: 4 March 1997

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO 294 OF 1996

IN THE MATTER OF LEADERSHIP TRIBUNAL

TIMOTHY BONGA — PLAINTIFF

AND

HON. JUSTICE MAURICE SHEEHAN

MR MARCUS BAYAM — SPM

MR HIMSON WANINARA — SPM — FIRST RESPONDENTS

AND

THE STATE — SECOND RESPONDENT

Waigani

Kapi DCJ

12 February 1997

4 March 1997

JUDICIAL REVIEW — Leadership Tribunal, determination by — Statement of Reasons by the Ombudsman Commission, the meaning and nature of — whether Statement of Reasons constitute evidence against a leader — Whether the decision-making process is defective when there is no evidence.

CONSTITUTIONAL LAW — Organic Law on the Duties and Responsibilities of Leadership, whether evidence collected by Ombudsman Commission, may be admitted in a Leadership Tribunal, s. 21 (6) — Power of Leadership Tribunal to conduct Independent inquiry under s. 29.

Counsel

S Soi for the Plaintiff

J Kawi for the Respondents

4 March 1997

KAPI DCJ: Mr Timothy Bonga (hereinafter referred to as the Plaintiff) was found guilty of offences relating to misconduct in office under the provisions of Organic Law on the Duties and the Responsibilities of Leadership (hereinafter referred to as the OLDRL) by the Leadership Tribunal consisting of The Hon. Mr Justice Sheehan, Mr Macus Bayam and Mr Himson Waninara (hereinafter referred to as the Tribunal). The Tribunal subsequently recommended the dismissal of the plaintiff as Chairman of the Lae City Authority.

The plaintiff filed an application for judicial review of this decision under O 16 of the National Court Rules. Leave for judicial review was granted by Salika J on 13 August 1996.

Initially, the matter came before me for hearing on 16 December 1996. When counsel made opening remarks on the nature of the issues to be dealt with, it became clear to me that the transcript of the proceedings would be required. I was informed by counsel that the proceedings were recorded but that no transcript had been produced. Both counsel agreed that the matter should not proceed until a transcript of the proceedings was made available. The matter was adjourned for this reason.

The transcript has been made available and the matter resumed before me on 12 February 1997. Both counsel have had time to peruse the transcript and agreed to admit it as representing accurate records of the proceedings of the Tribunal.

In order to appreciate the issues, it is necessary to set out fully the circumstances which prompted this application.

Under OLDRL if the Ombudsman Commission (hereinafter referred to as the Commission) is satisfied that a leader is guilty of misconduct in office, it may refer the matter to the Public Prosecutor for his consideration under s. 27 (1) of OLDRL together with the statement of reasons by the Commission.

If the Public Prosecutor considers that the matter should proceed further, he may refer the matter to the appropriate tribunal for prosecution together with the statement of the Commission (s. 27 (2) of OLDRL).

In the present case, the procedure outlined above was followed and the Tribunal was appointed under s. 27 (7) (e) of OLDRL to hear counts relating to misconduct in office.

When the Tribunal convened on 11 March 1996, Mr Kuvi, the prosecuting counsel, formally referred 16 separate allegations of misconduct in office. Mr Kuvi presented these counts in a document titled "Reference By The Public Prosecutor Of A Matter Pursuant To Section 27 (2) Of The Organic Law On The Duties And Responsibilities Of Leadership To The Tribunal Appointed Under Section 27 (7) (e) Of The Law To Investigate And Determine Alleged Misconduct In Office By Mr Timothy Bonga" dated 5 February 1996 and signed by the Public Prosecutor (see Appendices 2 to the Decision of the Tribunal — Annexure marked "G" referred to in the affidavit of Mr Soi sworn 20 June 1996).

Mr Kuvi also referred the statement of reasons by the Commission (see Annexure marked "A" in affidavit of Mr Soi sworn on 20 June 1996) together with a document titled "Book of Exhibits Number 1 — 74" (see Annexure marked "B" in affidavit of Mr Soi sworn 20 June 1996).

At the hearing before the Tribunal, counsel for the plaintiff raised a number of preliminary issues which were ruled upon by the Tribunal. It is not necessary to refer to all of them. For the purposes of the matter which has become the subject of the hearing before me, counsel for the plaintiff objected to the referral or tendering of the statement of reasons by the Commission. One of the grounds relied upon was based on the principles of natural justice. In brief, counsel for the plaintiff argued that the statement of reasons contained prejudicial material, namely, certain findings made by the Commission that the plaintiff was guilty of misconduct in office. Counsel submitted that these adverse findings against the plaintiff if admitted in the Tribunal might influence the members of the Tribunal in their deliberations.

The Tribunal ruled on this particular objection on 12 March 1996. It dismissed the objection on the basis that S 27 (2) of OLDRL required the statement of the Commission to be referred to the Tribunal. It further ruled that this was only a procedural requirement and the Tribunal will determine the misconduct counts based on the evidence that will be brought before it.

Subsequent to this ruling on 12 March 1996, counsel for the plaintiff made a further objection to the referral or tendering of Book of Exhibits number 1-74 which contained copies of documents and statement of witnesses which were obtained by the Commission in the course of its investigation. Counsel based this objection on a number of legal grounds. The ground which has been taken up in the application before me is that the only document which can legally constitute the statement of reasons that may be referred to the Tribunal is the opinion of the Commission which is contained in the document titled statement of reasons. Counsel submitted that any evidence upon which the Commission may based its opinion is not admissible and need not be referred to the Tribunal.

The Tribunal after a short adjournment dismissed the objection. It ruled that the exhibits were part and parcel of the statement of reasons and is required by OLDRL to be placed before the Tribunal. It further ruled that the statement of reasons with the exhibits could not constitute evidence.

After the preliminary objections were dealt with, the Tribunal then proceeded with the hearing. Counsel for the plaintiff advised the Tribunal that the plaintiff had responded in writing to each of the counts. This document was handed up (see Annexure marked "D" referred to in the affidavit of Mr Soi sworn 20 June 1996). The plaintiff denied all the facts with the exception of counts 12 and 13. In the same document the plaintiff also responded to all the exhibits attached to the statement of reasons. In brief the plaintiff denied all the charges as well as the facts apart from the admissions.

At this stage, the prosecutor had every indication of what he had to prove. Mr Kuvi indicated to the tribunal that he would call about ten or eleven witnesses to prove his case against the plaintiff.

Significantly on 13 March 1996, Mr Kuvi then indicated to the Tribunal that all the evidence he intended to call is in the statement of reasons and there was no need for him to call any evidence. As a result of the position taken by the prosecutor, counsel for the plaintiff persistently raised the issue of the admissibility of the statement of reasons together with the exhibits. The final position taken by the Tribunal on this issue appears in its published ruling (see page 3 of Ruling of Tribunal (2) — Appendices 3 of the Decision of the Tribunal contained in Annexure marked "G" referred to in the affidavit of Mr Soi sworn 20 June 1996):

"There has been objection to the Tribunal accepting the Statement of Reasons. We have already ruled on that. We are obliged by statute to have regard to it. We have already said it comprises the commentary and documents on which charges are based though none of these documents become evidence or the conclusion accepted until determined by this Tribunal. To make doubly sure, we say that the Statement of Reasons is taken as the opening Summary of the Prosecution story. The prosecution explanation of the documentary evidence and facts disclosed in the exhibits. It is perhaps the invitation to the Tribunal to make the same conclusions as the Ombudsman Commission and the Prosecution on the same proffered evidence."

The prosecution did not call any evidence apart from the statement of reasons.

The plaintiff on the other hand filed an affidavit sworn 28 March 1996 (see Annexure marked "F" referred to in the affidavit of Mr Soi sworn 20 June 1996). He was also cross-examined by Mr Kuvi and questioned by Members of the Tribunal.

The Tribunal took time to consider the matter and handed down its decision...