Honourable Arthur Somare v Honourable Justice Lenalia, His Worship Mr Orim Karapo and Her Worship Mrs Noreen Kanasa as Chairman and members of a Leadership Tribunal; and Camillus Sambua, Acting Public Prosecutor (2011) N4421

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2011) N4421
• Date: 17 October 2011
• Docket Number: OS NO. 435 of 2011 (JR)
• Year: 2011

Full Title: OS NO. 435 of 2011 (JR); Honourable Arthur Somare v Honourable Justice Lenalia, His Worship Mr Orim Karapo and Her Worship Mrs Noreen Kanasa as Chairman and members of a Leadership Tribunal; and Camillus Sambua, Acting Public Prosecutor (2011) N4421

National Court: Gabi, J

Judgment Delivered: 17 October 2011

JUDICIAL REVIEW—application for review of first defendants decision declining to find the “reference” or “statement of allegations” for a Leadership Tribunal hearing as null and void—plaintiff contends state prosecutor, among others, doesn’t have power to make referral—whether the reference is defective - Reference is not defective on the basis that it was signed by a State prosecutor - Reference may be amended or withdrawn and presented again - proceeding dismissed with costs—orders made earlier are discharged—tribunal hearing to reconvene as soon as practicable

Cases cited:

PNG Harbours Ltd v Pex Siaoa Avosa (2006) N3065; SCR. No. 1 of 2009 Application by Herman Joseph Leahy (2010) SC1018; SCR. No.3 of 2005 Re Public Prosecutor’s power to request the Chief Justice to appoint a Leadership Tribunal (2008) SC1011; Arthur Gilbert Smedley v The State [1980] PNGLR 379; The State v Esorom Burege (No 1) [1992] PNGLR 481; The State v Pawa Kombea [1997] PNGLR 494

Text:

De Smith’s Judicial Review, Sixth Edition, paragraph 5-138; Wade & Forsyth, Administrative Law, Tenth Edition, page 259;

17th October, 2011

1. GABI J: Introduction: This is an application for judicial review of the decision of the first defendants on 28th July 2011 declining to find that the document known as “Reference” or “statement of allegations” dated 4th July 2011 presented to them under the Organic Law on the Duties and Responsibilities of Leadership (Organic Law) by a State Prosecutor (SP) is null and void and of no effect.

2. On 24th February 2006, the Ombudsman Commission (OC) having formed the opinion that the plaintiff is “prima facie ... guilty of misconduct in office” referred him to the Public Prosecutor (PP) “for prosecution before a tribunal”. On 30th August 2006, the PP advised the Chief Justice (CJ) thus:

“I have considered the matters and pursuant to s27(2) of the Organic Law, the matters be proceeded with. I therefore, request that an appropriate Tribunal be appointed by Your Honour to hear and enquire into the above-mentioned matters pursuant to s27(7) of the Organic Law.”

3. The CJ appointed a Tribunal to hear and enquire into the allegations.

4. On 21st June 2011, the acting PP appointed Mr. Kathwa Umpake, a State Prosecutor (SP), as the lead prosecutor to prosecute the plaintiff before the Tribunal.

5. On 4th July 2011, Mr. Umpake presented the Reference or the statement of allegations together with the OC’s Statement of Reasons to the Tribunal. The...