Mao Zeming v Justice Timothy Hinchcliffe, CBE and Frank Manue and Patrick Monouluk (2008) SC952
| Jurisdiction | Papua New Guinea |
| Judge | Salika J., Davani J & Lay JJ |
| Judgment Date | 30 October 2008 |
| Court | Supreme Court |
| Citation | (2008) SC952 |
| Docket Number | SCM No. 2 of 2006 |
| Year | 2008 |
| Judgement Number | SC952 |
Full Title: SCM No. 2 of 2006; Mao Zeming v Justice Timothy Hinchcliffe, CBE and Frank Manue and Patrick Monouluk (2008) SC952
Supreme Court: Salika J., Davani J & Lay JJ
Judgment Delivered: 30th October 2008
SC952
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCM No. 2 of 2006
BETWEEN
Mao Zeming
Appellant
AND
Justice Timothy Hinchcliffe, CBE
AND
Frank Manue
Second Respondent
AND
Patrick Monouluk
Third Respondent
Waigani: Salika J., Davani J & Lay JJ
2007: 2nd May
2008: 30th October
SUPREME COURT- appeal - judicial review - procedural error - remedy
ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERS ("LEADERSHIP CODE") S 21(6) - evidence admitted contrary to provision of Leadership Code
Facts
During the hearing of a referral of charges to a Leadership Tribunal evidence of the Leader’s response to the Ombudsman Commission was admitted into evidence without the consent of the Leader contrary to the provisions of s21(6) of the Organic Law on the Duties and Responsibilities of Leaders. The National Court found that the Tribunal had fallen into error but declined relief on the basis that there was sufficient other evidence to support the Tribunal’s conclusions.
Held (Salika and Lay JJ)
1. In assuming the inevitability of an outcome the court is pre-judging or re-weighing the decision to be made by the Tribunal and thus may be in danger of overstepping the bounds of its reviewing function by entering into the merits of the decision itself;
2. A reviewing judge must be very careful before refusing certiorari against a tribunal vested with judicial functions. There must be careful consideration of the nature of the error made and whether the nature of the error may have affected the end result. Where the error affects the nature of the evidence on which the tribunal must base its findings of fact or law, the reviewing judge must be confident that the error did not affect the decision which was in fact made before refusing relief;
3. In a rare case where the facts are clear, the issue succinct and the evidence concise a reviewing judge may be justified in coming to the conclusion that if the error had not occurred no other conclusion than the one reached by the tribunal could have been reached.
4. Appeal allowed. Decision of the National Court and the Tribunal set aside. Liberty granted to the Public Prosecutor to apply to the Chief Justice to establish another tribunal to rehear the referral.
Davani .J (Dissenting)
5. Even when an error is established, that the discretion to grant certiorari must be exercised with caution and in appropriate cases only, taking into account the sum effect of all considerations.
6. The appellant was not denied natural justice because he alone, chose not to call further evidence or object to the documents that were tendered.
7. The power to quash the Tribunal’s decision is discretionary and it must be exercised with caution, again, taking into account the sum effect of all considerations.
8. All of the trial judge’s decision must be read in totality rather than singling out ‘rogue’ paragraphs or sentences.
9. Appeal must be dismissed.
Cases Cited:
PNG Cases
Central Pomio Logging Corp. Pty Ltd v The State [1992] PNGLR 20 at 25
Andrew Posai [1995] PNGLR 350 at 353
Timothy Bonga v Hon. Justice Maurice Sheehan [1997] PNGLR 452
Mision Asiki v Manasupe Zurenuoc (2005) SC 797.
Overseas Cases Cited
Re Beer and Australian Telecommunications Commission [1990] AAT No. 5974.
Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286
Re Golem and Transport Accident Commission [2002] VCAT 319
References
De Smith, Woolf and Jowell Judicial Review of Administrative Action, 5th edition
Organic Law on the Duties and Responsibilities of Leaders
Counsel
H. Leahy, for the appellant
No appearance for the respondents
30 October, 2008
1. SALIKA J AND LAY J: Mr Zeming is the former member of the National Parliament for the Tewae-Siassi Open Electorate. He was brought before a Leadership Tribunal constituted by the respondents which recommended his dismissal from office after finding him guilty on 9 of 12 allegations of misconduct in office. The recommendation was accepted by the Head of State and came into effect.
2. Mr Zeming sought judicial review by the National Court of the decision of the Leadership Tribunal and that review dismissed his application with costs. He appeals from that decision.
3. The Appellant's ground of review was that the Leadership Tribunal wrongly admitted into evidence Mr Zeming's response to the Papua New Guinea Ombudsman Commission's allegations against him. This was in direct contravention of the provisions of the Organic Law on the Duties and Responsibilities of Leaders ("Leadership Code") s 21(6) which provides that no statement or evidence given in the course of an Ombudsman investigation can be given in evidence against any person.
4. The trial Judge found that Mr Zeming's response to the Papua New Guinea Ombudsman Commission was not in evidence before the Leadership Tribunal, but that the leadership tribunal had nevertheless wrongly relied upon it in reaching its decision. However, he found that "... the breach of s 21(6) did not result in any real and substantial injustice to the Plaintiff” and for that reason declined to quash the decision of the Tribunal.
5. The issues, which fall for us to determine, from the grounds of appeal, are:
A. Was Mr Zeming's reply to the Ombudsman in evidence before the Leadership Tribunal?
B. If Mr Zeming's reply was before the Leadership Tribunal as evidence was it lawfully before it?
C. Did the Leadership Tribunal have reference to Mr Zeming's reply to the Ombudsman in making its decision?
D. If Mr Zeming's reply to the Ombudsman was in evidence before the Leadership Tribunal unlawfully and the Tribunal had reference to it in making its decision, should the relief be granted, which was refused by the National Court, to quash the findings and recommendations of the Tribunal?
6. We will address those questions in the order set out. Before going on we note that we did not have the assistance of counsel for the Respondents. No one from the office of the Solicitor General appeared when the matter was called at 9:30 a.m. We stood the matter over to 3 p.m. and directed counsel for Mr Zeming to serve notice on the Solicitor General, which was done at about 12:30 p.m. as appeared from the affidavit of service filed by staff of the lawyer on record for Mr Zeming. As there was still no appearance from the Solicitor General's office at 3 PM we proceeded to hear counsel for Mr Zeming.
Was Mr Zeming's reply to the Ombudsman in evidence before the Leadership Tribunal?
7. In the decision appealed from the trial judge said:
"The Plaintiff's Statement of Reply which has 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 exhibits."
We are satisfied that this observation is an error as the transcript of evidence at pages 132, 136, 150 and 153 of the Appeal Book shows that in fact, the Leader's Statement in Reply, which was document 108, was tendered into evidence and marked Exhibit 108 as part of the affidavit of counsel for the Ombudsman. Each of the annexures to the reply was also marked as an exhibit.
Was Mr Zeming's reply to the Ombudsman lawfully before the Leadership Tribunal?
8. The Leadership Code Section 21 (6) provides as follows:
"(6) Except on the trial of any person for perjury in respect of his sworn testimony, no statement made or answer given by that or any other person in the course of any inquiry by or any proceedings before the Commission or other authority is admissible in evidence against any person in any court or at any inquiry or any other proceedings, and no evidence in respect of proceedings before the Commission or other authority shall be given against any person."
9. The provision has been the subject of previous judicial comment, but not by the Supreme Court. Kapi DCJ (as he then was) examined Section 21 (6) and related provisions in the case of Timothy Bonga v Hon. Justice Maurice Sheehan [1997] PNGLR 452. His Honour made three points and we, with respect, agree with them. The first is that Leadership Code Section 27 (2), in providing that the Ombudsman's Statement of Reasons can be provided to the Tribunal, is referring only to the statement of reasons and not to the evidence by which the Ombudsman arrived at those reasons. The second point is that Section 21 (6) puts that conclusion beyond any doubt. The third point is that the Tribunal is free to call the same evidence on which the Ombudsman relied through witnesses who can properly produce it.
10. The trial judge in this case observed that:
"Given the prosecution role conferred on the Public...
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