Paul Pora v The Honourable Mr Justice Sakora, George Manuhu and Orim Karapo constituting the Leadership Tribunal, and Panuel Mogish [1997] PNGLR 1

• Jurisdiction: Papua New Guinea
• Judge: Salika J:
• Judgment Date: 14 November 1996
• Court: Supreme Court
• Year: 1997
• Citation: [1997] PNGLR 1
• Judgement Number: SC512

Full Title: Paul Pora v The Honourable Mr Justice Sakora, George Manuhu and Orim Karapo constituting the Leadership Tribunal, and Panuel Mogish [1997] PNGLR 1

Supreme Court: Amet CJ, Kapi DCJ, Salika J

Judgment Delivered: 14 November 1996

1 Constitutional Law—Organic Law on the Duties and Responsibilities of Leadership—Referral to the Public Prosecutor and the Tribunal—Ombudsman Commission's investigation and referral

2 Appeal—Refusal by National Court to grant judicial review—No arguable case on the merits—Principles of natural justice

3 Evidence—Non–disclosure of certain documentary evidence—Crucially important and directly relevant to investigations—Not affecting the matter of natural justice—Whether sufficient evidence for referral—Tribunal not bound by strict rules of evidence—Organic Law on the Duties and Responsibilities of Leadership, s27(4)

4 NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini Pty Ltd [1987] PNGLR 70, Ila Geno v The Independent State of Papua New Guinea [1993] PNGLR 22, Inland Revenue Commissioners v National Federation of Self–Employed Small Businesses Ltd [1982] AC 617, John Mua Nilkare v Ombudsman Commission (1996) SC497, Diro v Ombudsman Commission of PNG [1991] PNGLR 153, R v Leyland Justices, ex parte Hawthorn [1979] QB 283, R v Blundeston Prison Board of Visitors, ex parte Fox–Taylor [1982] 1 All ER 646, Al Mehdaw v Secretary for the Home Department [1989] 3 All ER 843, R v Crown Court at Knightsbridge, ex parte Goonatilleke [1985] 2 All ER 498, R v Kingston upon Thames Justices, ex parte Khanna [1986] RTR 364, R v Crown Court at Liverpool, ex parte Roberts [1986] Crim LR 622 and R v Bolton Justices, ex parte Scally [1991] 1 QB 537 referred to

5 National Court Rules, O16, Organic Law on the Duties and Responsibilities of Leadership, s20, s27

Held:

(1) That there was no arguable case made out on the merits to warrant grant of leave

(2) That the non–disclosure of certain documentary evidence did not affect matters of natural justice relating to the Leader. It goes to the question of whether there was sufficient basis on which the Leader should be referred to the Public Prosecutor

___________________________

Amet CJ:

The Appellant is a Member of the National Parliament. He was the Minister of Finance and Planning in a previous Government. In both capacities he is a "leader" and thus subject to the Organic Law on the Duties and Responsibilities of Leadership (the Organic Law).

The Ombudsman Commission (the Commission) administers the Organic Law. It is empowered to carry out investigation into the conduct of a "leader", in relation to allegations of misconduct in office in breach of the Organic Law.

After such an investigation into certain conduct of Paul Pora, in his capacity as the then Minister of Finance and Planning, the Commission formed the opinion that there was evidence of "misconduct in office" and referred the matter to the Public Prosecutor for prosecution by him before the appropriate Tribunal. (s17(c), s20(3) and s20(4) Organic Law). The Public Prosecutor subsequently referred 31 charges before the Leadership Tribunal.

In the course of the hearing of the charges before the Tribunal, the stage had been reached where the evidence for the prosecution had been concluded and the Appellant was himself completing his evidence in chief, when the issue arose over the non–disclosure of certain documents by the Commission.

The sequence of facts and circumstances as they were unveiled before the Tribunal and it's deliberations and conclusions upon them are extracted for convenience from the transcript of the proceedings, as follows:

"On Friday, 31st of May, 1996, Mr Sheppard Counsel for and on behalf of the Leader under investigation here, that is Mr Paul Pora, made application, seeking the following immediate relieves or remedies from this Tribunal. Firstly, the Tribunal discharged Mr Pora, secondly, the Tribunal terminated these proceedings, and finally, the tribunal awarded costs on indemnity basis against the Ombudsman Commission in favour of the Leader. We heard both counsels on the application and reserved our ruling or decision till this morning. The application was made as a direct result or consequence of the tendering before the Tribunal of certain document by the learned counsel for the Public Prosecutor on Thursday 30th of May 1996. These documents came to light, that is, their possible existence came to light when Mr Sheppard sought and had tendered into evidence, without objection on Tuesday 28th of May 1996, a copy of a letter from Ombudsman Commission Ridges to the then Secretary for Finance and Planning, Mr Gerea Aopi, which letter was dated the 14th of August 1992. The letter was written at the height of the Ombudsman Commission's investigation into allegations of misconduct in office of Mr Pora, the then Minister for Finance and Planning. The letter sought the advice and assistance of the then Secretary in respect of seven listed documents and the Secretary furnished these documents. The seven listed documents directly pertaining to the charges before the Tribunal enumerated as counted 1—7 and collectively described in this investigation as the 'Loans Affair' allegations and the letter is now exhibit 'N11' of this investigation. It then transpired that Mr Manek, learned counsel for the Public Prosecutor had never seen the letter in question nor a copy thereof before last Tuesday 28th of May. The letter, exhibit N11 was not part of the document referred to the Public Prosecutor in the first place by the Ombudsman Commission and then referred to this Tribunal by the Public Prosecutor.

The Tribunal then ruled on the appearance of Mr Aopi either voluntarily of under sufferance pursuant to a Tribunal witness summoned to assist the Tribunal on the 14th of August 1992 letter, and any consequence of communications thereof, more particularly, any direct response to the Ombudsman Ridges' letter of 14th of August 1992. The Tribunal was subsequently advised that Mr Aopi, who is now the Chief Executive Officer of Telikom would voluntarily appear before this Tribunal and assist the Tribunal in the way the tribunal wanted or requested. On the afternoon of Thursday 30th of May 1996, Mr Manek advised that since Tuesday 28th of May 1996, he had requested a search of the Ombudsman Commission files and records with a view to locating any documents associated with the 14th August 1992 letter, exhibit N11. Through the efforts of Mr Ravi Perera, the Senior Legal Officer with the Ombudsman Commission, the documents were located and an affidavit was sworn by Mr Perera to this effect on the 30th of May 1996, annexing documents which were tendered with it and now form part of the evidence before this Tribunal.

The documents that were located and were attached are described in paragraph two of Mr Perera's affidavit and I go through this very quickly for our present purposes. Firstly,

(a) File copy of the Ombudsman Commission letter dated 14th of August 1992, addressed to the Secretary, Department of Finance and Planning as I have indicated already;

(b) The Secretary's response to this letter dated 2nd of October 1992;

(c) File copy of the Ombudsman Commission letter dated 14th of August 1992, addressed to the Secretary, Department of Attorney–General;

(d) The response to this letter from the Acting State Solicitor dated 29th of October 1992; and

(e) File copy of the Ombudsman Commission letter dated 14th July 1992, addressed to the Secretary, Department of Attorney–General and Justice.

Finally, the response to this letter from the Acting Solicitor–General dated 30th of September 1992. All in all, six documents associated with the document now described as exhibit N11.

Now, there is no doubt in the collective mind of the Tribunal that these documents which were crucially important and directly relevant to the investigations and the subsequent referrals, but firstly, referral to the Public Prosecutor and the final referral to this Tribunal and the exercise of its investigatory powers and functions. Firstly, were or had been in the physical custody and control of the Ombudsman Commission. There is equally no doubt. Secondly, that these documents, as I had just described had been withheld from the reference, firstly, to the Public Prosecutor and consequently, reference to this Tribunal by the Prosecutor. The Tribunal is satisfied in the absence of any explanation by Mr Perera or anybody else for that matter that these documents were deliberately withheld from the Public Prosecutor with the consequent withholding from this Tribunal. The Tribunal is satisfied this deliberate act on the part of the Ombudsman Commission in a matter...