DC164

PAPUA NEW GUINEA
IN THE CORRECTIONAL SERVICES APPEALS TRIBUNAL

BETWEEN

David Melange
Appellant

V

Dominic Tomarc
Respondent

Oli: Chairman
Cs Appeals Tribunal

December 22 2003; January 9, 30, January 6 2004

Applicant: Mr David Keta
Respondent: Mr Chris Waiange

REASONS FOR DECISION

OLI, DCM: The Appellant appeals from a decision of the Disciplinary Board which found him guilty of improper conduct contrary to Section 39 (g) of the Correctional Services Act 1995 (hereafter Correctional Service Act) and recommended for his dismissal pursuant to Section 44 (1)(d) of the Correctional Service Act.

The Appellant relies on two ground for his appeal namely innocence of the offence and abuse of process. I will deal with the latter first.

AN ABUSE OF THE DISCIPLINARY PROCESS

The Appellant submitted that the Acting Commissioner appointed the Disciplinary Board Members in contravention of Section 42 (2) of the Correctional Service Act 1995. Therefore, the Disciplinary Board Members were not validly constituted.

In support of the first ground of Appeal we refer to Section 42 (2) of the Correctional Service Act 1995 (hereafter CS Act) which are in the following terms:

Section 42 (2) – Serious Offences

(2) 	"The Commissioner shall appoint for each Correctional Institution a Disciplinary Board which shall be comprised of the Commanding Officer of that Correctional Institution, the Deputy Commanding Officer of that Correctional Institution and another Senior Correctional Officer or Member of that Correctional Institution."

The above provision is very clear and it is a mandatory requirement that the Commissioner appoints the members of his Disciplinary Board from within that particular Correctional Institution.

In the present case, the alleged offence was committed at the Biru Correctional Institution in Popondetta in the Oro Province which is declared as a Correctional Institution under Schedule 2 of the Correctional Service Act 1995. The Commissioner was required under the Act to appoint the Disciplinary Board Members from the Biru Correctional Institution.

Alternatively, the Commissioner should have directed the existing Disciplinary Board of the Bomana Correctional Institution because the Appellant was already transferred to Bomana as Functional Manager Administration before the charge was laid and he was not the Commanding Officer of the Bomana Correctional Institution as claimed by the Respondent.

However, contrary to Section 42 (2), the Commissioner appointed Disciplinary board Members who are not based at either Biru or Bomana Correctional Institutions but from other institutions. 

The Chairman of the Disciplinary Board, Mr Dominic Tomar was the Assistant Commissioner for Executive Support and Acting Deputy Commission Operations based at the Correctional Service Headquarters and the other two Board Members were Chief Superintendent Samson Jaro, the Commanding Officer of the Buimo Correctional Institution in Lae, Morobe Province and Superintendent Andy Sisipa, the Commanding Officer of the Bihute Correctional Institution in Goroka in the Eastern Highlands Province.

The Appointment of Disciplinary Board Members from different Correctional Institutions is contrary to Section 42 (2) of the Act which is mandatory. There is some disagreement that appointments were made in accordance with the Correctional Service Standing Order No. 9. We repute that Standing Orders are not the same as the Act of Parliament which is in fact the Law. The Parliament has not amended Section 42 (2) of the Correctional Service Act and therefore, the appointment of Disciplinary Boards shall be done in accordance with that provision. If the appointment of Disciplinary Board Members is done contrary to Section 42 (2) then, the whole process is invalid and their decision cannot stand.

In the case of William Mous vs Otto Benal Magiten (not reported) 1st December 2000, His Honour Kandakasi J said:

"It is now settled law that District Courts are not Courts of record and creatures of Statutes. Therefore their powers, functions and anything to do with them are governed by their enabling Legislation, the District Courts Act (Chapter 40) hereafter "the Act". Consequently, all the things done not in accordance with the Act have been held to be Null and Void and of no "effect".

Also see Rabaul Shipping Limited vs Rita Ruru N 2022. The Senior Stipendiary Magistrate Ex parte The Acting Public Prosecutor [1976] PNGCL 344 at 349.

In applying the above principles, the Commissioner acted in contravention of Section 42 (2) of the Correctional Service Act when he appointed the Disciplinary Board and therefore we submit that the Disciplinary Board’s decision to dismiss the Appellant has no effect and therefore null and void.

Ground Three (3):

The charge laid against the Appellant was very vague because it did not specifically state the exact dates when the Appellant stole the firearms and did not specifically mention the details of the firearms.

The charge is clearly stated in page 1 of the transcript as we quote:

Fact in brief:-

"On the 29th June and 1st July 2001 whilst being the Commanding Officer of Biru Correctional Institution, removed two .38 pistols, one Winchester Short barrel and a large quantity of ammunition and delivered/caused to be delivered to criminals at Popondetta for illicit use" end of quote.

The above is how the charge was termed and read to the Appellant during the opening f the Disciplinary proceedings.

There was another charge, which was dated the 30th June 2003, which read in the following terms:

"Between 27th June and 4th July 2001 at Biru Correctional Institution, you were guilty of improper conduct in your capacity as Commanding Officer removed firearms and ammunition from the Institution’s gun safe and delivered them to criminals which were used for illicit purposes" end of quote.

It is very confusing as to the actual dates the Appellant is alleged to have removed the firearms and ammunition, whether it was on the 29th June, 1st July or 27th June or 4th July 2001 but when the actual charges were read out, it was stated on the 29th June and 1st July 2001.

At page 4 of the transcript, the Appellant protested by saying that the charge the Chairman of the Disciplinary Board read to him was different from the charge that he was served, see pages 4 and 5 of the transcript.

This means that the Appellant was taken by surprise when a different charge was read to him to plea, which he said that he was not prepared. However, without giving the Appellant any opportunity, the matter proceeded.

We submit that the Disciplinary Board used unfair tactic and suppressed the Appellant by introducing a different charge, which he was not prepared and under these circumstances, the Appellant was not given the opportunity and the charges alleging four different dates were in fact very vague.

Therefore, we submit that the Chairman of the Appeals Tribunal should uphold the Appellants third ground of appeal.

Attachment "A" the charge sheet dated 30th June 2003 which the Appellant was served.

Ground Four (4)

The witnesses called by the Acting Commissioner to testify against the Appellant were not reliable and independent witnesses because the Appellant had already alleged that the key witness was a prime suspect of the missing firearms and ammunition and therefore his evidence was biased against the Appellant.

Correctional Warder Gabriel Cornelius who was in-charge of the Armory at the time was called as the key witness to testify against the Appellant when he was the prime suspect for the alleged missing firearms.

The Appellant being the Commanding Officer at the Biru Correctional Institution at the time recommended to the appropriate authorities to lay disciplinary charges against the officer which the Commissioner did not charge for reasons only known to him.

Prior to the Disciplinary Boards sitting to determine the Disciplinary Charges against the Appellant, Gabriel Cornelius who was the key witness was not in good terms with the Appellant because the Appellant accused him (Gabriel) of removing the missing firearms and ammunition and he Gabriel was a prime suspect.

However, the prime suspect testified against the Appellant as a principle witness. Therefore, one would be very cautious about accepting such witnesses evidence when there is already in existence some hatred among two persons. One would also be very cautious that Mr Gabriel Cornelius evidence is not clouded with bias. In fairness, an independent witness would have been more appropriate than calling a witness which the Appellant already accused of removing the firearms and ammunition and a prime suspect.

In any case, there is no evidence given in the hearing by Gabriel Cornelius, which specifically says that on The 27th of June 2001, the Appellant removed the firearms and ammunition, nor did the witness specifically state anywhere in his evidence that the Appellant removed the firearms and ammunition on the 4th July 2001.

Some of the crucial parts of Gabriel Cornelius evidence is as follows as contained in the transcript.

Q15: Confirms his appointment as Armourer on the 16th May 2001.

Q18: "The firearms register shows that he issued out a firearm on the 27th June 2001. What was the purpose of the firearm being issued on that date?

Answer: For hospital escort.

The Appellant committed the date 27th June 2001 is the same date the alleged offence.

Q22: Is it true some firearms and ammunition went missing from the Armoury between the end of June and early July 2001?

Note that this was a leading question.

Answer: Yes.

Q24: Can you tell the Court when these items went missing?

Answer: "On the 4th July 2001 when the Commanding Officer called me to return the bullets found under a cushion chair. When I returned the bullets to the gun safe, I found out that some arms and ammunition were missing."

The answers given by the key witness for question 22 and 24 reveals that witness was not aware of what dates the firearms and ammunition went missing. He only became aware of it on the 4th July 2001 when the Appellant called him to his office to return the bullets to the gun safe on the 4th July 2001.

Q31: "Since you took over the Armourers duties in May 2001, were you ever alone at the Commander’s Office at any time to open the gun safe and do maintenance?"

Answer: "Yes, during working hours only and for short periods of time only."

Q34: "On the 4th July 2001, when you found out that the firearms and ammunition were missing, whom did you confirm the missing items with?"

Answer: Mr Bamua Kubu.

The above questions and answers clearly shows that the witness has access to the keys to the gun safe. But most importantly, he did not report the missing firearms and ammunition to the Appellant who was the Commanding Officer but reported the missing firearms and ammunition to Mr Bamua Kubu.

We submit that from the evidence given by Gabriel Cornelius, he does not point out the exact dates the alleged firearms and ammunition went missing. On the change it is alleged that the firearms and ammunition went missing on the 27th June 2001 then Mr Gabriel Cornelius has some explanation to do because he has admitted in his evidence that on the 27th June 2001, he issued a firearm for hospital escort and that means he had the keys to the gun safe. Section Q. 18.

Furthermore, on the 4th July 2001, he also had the gun safe keys and he himself knew that the firearms and ammunition were missing but did not report it to the Appellant who was the Commanding Officer but reported it to Mr Bamua Kubu.

On the dates alleged on the charges, which is 27th Jun and 4th July 2001, the principle witness Gabriel Cornelius had the keys for armoury and he failed to explain how the firearms were removed.

In most circumstances, the key witness should be blamed for his negligence because the firearms and ammunition were removed on the same dates when the keys to the armory were in his possession. What if he duplicated the keys and handed the original keys to the Commanding Officer?

In the absence of any direct evidence linking the Appellant removing the firearms and ammunition on the 27th June and 4th July 2001, the prime suspect should have been Gabriel Cornelius.

To demonstrate that there was some ill feelings between the Appellant and the principal witness Gabriel Cornelius, the answers the witness gave during cross examination from Q.19 to Q.21 of the transcript shows that the witness was uncooperative, hostile and avoided giving answers which were of assistance to the Disciplinary Board and the Appellant.

Ground 5:

The Disciplinary Board failed to consider the circumstantial evidence, which established that, the firearms went missing at the time when Correctional Warder Gabriel Cornelius had the keys to the Commander’s Office and the gun safe doing the stock take and servicing all the firearms.

The arguments raised under ground four (4) above are same as ground five. It is submitted that the very dates the alleged missing of firearms, the key witness, Mr Gabriel Cornelius had the keys to the gun safe. The key witness admits that on the 27th June 2001, he issued a firearm for hospital escort – Q. 18.

On the 4th July 2001, he had the keys to the Armoury and found out that the firearms and ammunition were missing – Q.34.

On the relevant dates for the alleged offence, key witness Gabriel Cornelius had in his possession the keys and he should have been made to explain how these firearms and ammunition went missing. No one can exactly pinpoint with accuracy the specific dates when the firearms and ammunition were removed.

We therefore submit that the Chairman of the Correctional Service Appeals Tribunal should uphold grounds 4 and 5 of the Appellant’s appeal.

Ground Six (6)

The Disciplinary Board admitted hearing evidence from Fogi Manuda who is a notorious criminal from Popondetta and there was no direct evidence that the Appellant gave the shotgun to Fogi Manuda to be used in the armed robbery and there was no evidence of reward received by the Appellant in return of the firearms.

The Respondent’s second witness was Fogi Manuda who is a notorious criminal and his evidence is contained from Page 23 to 35 of the transcript.

The relevant evidence given by Fogi Manuda is contained on Page 27 Q. 20. We submit that all that is hearsay evidence because the witness says that Ensel Ensel gave him the black bag and told him to take out a pump action shotgun.

There is no direct evidence that the Appellant gave the gun to Fogi Manuda – Q. 43; the witness says that they gave the Appellant K5,000.00 but this is hearsay evidence.

The Respondents were able to call Mr Fogi Manuda to witness but why didn’t they call Mr Ensel Ensel as a key witness because the dealings of the shotgun were done between the Appellant and Ensel Ensel.

The same witness Mr Fogi Manuda in the first interview with the Police for the armed robbery gave a statement to the effect that Arthur Melange provided the two pistols and shotgun and ammunition to the criminals.

Now Fogi Manuda has changed his story by saying that the Appellant provided the shotgun. Which story is true, the first statement or the recent one?

In fairness, the Disciplinary Board should provide the report to the Chairman; the witness does not say that the Appellant provided three firearms and ammunition.

We submit that there is no evidence which points to the fact that the Appellant gave firearms to the witness but if there was any deals, the witness says that it was with Ensel Ensel and the Appellant and the witness cannot represent Ensel Ensel and speak on his behalf.

We therefore submit Ground 6 of the Appeal has been made up.

Ground 7:

The Disciplinary Board failed to call Mr Ensel Ensel who in the hearsay evidence connects the dealing between the Appellant and Ensel Ensel and not Fogi Manuda.

In respect of ground 7 of the Appeal, we submit that Mr Ensel Ensel should have been called to give evidence in support to corroborate Mr Manuda’s evidence.

The evidence given Mr Fogi Manuda has been all hearsay. Even though the Disciplinary Board is not bound by the technical rules of evidence, when very serious allegations are levelled against the most Senior Officers of the Institute, common sense and fair play should prevail.

Mr Ensel Ensel has provided a sworn affidavit dated the 10th November 2003 which has not been objected to by the Respondent in his final submission which we intend to submit as evidence. Mr Ensel Ensel stated that whatever Mr Fogi Manuda told the Disciplinary Board is all false and it has been fabricated. Attachment "B" - Mr Ensel Ensel’s affidavit.

Pursuant to Section 49 and 50 of the Correctional Service Act, the Chairman of the Correctional Service Appeals Tribunal may allow witnesses to be called to admit any evidence during the hearing of the Appeal and therefore Ensel Ensel’s affidavit is submitted as evidence without any objections from the Respondent.

Grounds 8 and 9

We intend to argue grounds 8 and 9 together. When Mr Fogi Manuda who is a criminal was called to give evidence, he was discriminating himself by admitting the offence he has committed. There was no immunity offered to him that his admission will not be used to prosecute him for a criminal offence for armed robbery and unlawful use of firearms. This was in contravention to the Provisions of the Constitution which prohibits him from discriminating himself.

We also submit that an independent witness in support did not corroborate his evidence.

The calling of two key witnesses by the Respondent was secretly arranged and the Appellant was never informed. Mr Leo Alauro admits this in his letter dated 30th June 2003. "Due to security reasons, I should not disclose the names of the witnesses and the hotel they would stay." End of quote.

Attachment "C"

The Respondents also arranged to pay Fogi Manuda K1, 500.00 for giving evidence, air tickets, hotel accommodation and travelling allowance.

Attachment "D1 – D4"

The arrangements for the witness to travel were made on the 14th July 2003, two days before the hearing and Appellant was not even notified of the number of witnesses that the Respondents were to call.

It is our respectful submission that the witness Fogi Manuda was induced and bribed to say things that the Respondents wanted him to say. The witness being a notorious criminal should have been kept in Police custody and escorted to the hearing.

If the witness was paid money to give evidence then one can assume that he will not exercise his free will to give evidence. Under these circumstances, the evidence of Mr Fogi Manuda should have been accepted with some cause as not a truthful witness.

We therefore submit that Grounds 8 and 9 should be upheld.

Ground 11:

The disciplinary charges against the Appellant was instigated by the Acting Commissioner for personal reasons as the incumbent Commissioner Mr Richard Sikani was convicted for Contempt of court charges and sentenced to six months imprisonment. The Acting Commission knew that the Commissioner’s position would become vacant and the Appellant would be a strong contestant for the position. He deliberately charged him, with the obvious intention to have the Appellant discharged from the Correctional Service.

In relation to Ground 11, we submit that the alleged offence was committed on 27th June and 4th July 2001. In the second week of August 2001, Mr Leo Alauro was directed to investigate the matter and provide his findings to the Commissioner. Mr Alauro in his opening address during the Disciplinary proceedings admits on page 2 of the transcript by saying:

"The matters was reported to the Correctional Service Headquarters and I was directed by the Correctional Service Commissioner to investigate the matter. I travelled to Popondetta on the second week of August 2001, investigated the matter and returned to Port Moresby."

Even though investigations were done immediately, no disciplinary charges were laid against the Appellant. The Popondetta Police were also directed to do a thorough investigation.

The Popondetta CID carried out the investigations as requested by the Correctional Service Commissioner and an Investigation Report dated 21st December 2001 by Inspector T. W. Tei suggests that there was no evidence that the Appellant removed the firearms and ammunition.

Attachment "E" is the Investigation Report

There was a prolong delay in bringing charges against the Appellant because Mr Leo Alauro did not establish in his report that the Appellant was responsible for the removal of the firearms and ammunition. Also the CID Report did not find any evidence that the Appellant was responsible and on that basis the Appellant was not charged for a Disciplinary Offence until two years after the incident and the Appellant was charged.

Section 40 (6) provides that all procedures and proceedings shall except where provision is made for a specific period of time, be conducted as expeditiously as possible."

We submit that knowing that it was a serious disciplinary offence, the delay in laying the charge against the Appellant was unreasonable and it was never conducted as expeditiously as possible.

Mr Leo Alauro was the initial investigator and after two years have lapsed and on the 16th June 2003, he conducted an other investigation and brought two witnesses. These reports and names of witnesses were not brought to the attention of the Appellant and everything was kept secret until the last minute.

This means the denial of the Appellant’s right to assess what the other side was going to say against him in his defence. To demonstrate that all the investigation reports and witnesses were kept secret, we refer to the two letters. A minute by Leo Alauro dated 30th June 203 that states that "due to security reasons, I should not disclose the names of the witnesses and the hotel they would stay," refer to Attachment "C" above. Also a letter by Deputy Commissioner Mr Girubane Moihau in his letter dated 31st July 2003 when the Appellant requested for the release of certain documents, he responded by saying that he will not release documents relating to payments and investigations reports by Leo Alauro. These letters suggest how all reports were kept secret.

See Attachment "F"

It is submitted that there are ulterior reasons and motives for charging the Appellant after two years has lapsed because Mr Kelly Karrela who was Acting Commissioner was lobbying for the Commissioner’s position and the Appellant and others were also lobbying for the same position.

The present Correctional Service Minister is the Appellant’s cousin and Mr Kelly Karrela knew that the present Correctional Service Minister will be behind the Appellant for the top job and there was infighting among the senior officers.

Mr Kelly Karrela issued a Circular to all the Commanding Officers on 19th June 2003 and the points raised in his Circular implies the Appellant and this Circular was more or less directed to the Appellant.

The Circular was issued on the 19th June 2003 and 11 days after the Circular on the 30th June 2003, the Appellant was charged for a Disciplinary Offence, which was alleged to have been committed some two years ago.

Attachment "G" is the Circular

The Chairman of the Correctional Service Appeals Tribunal can draw inferences from the letters, the real motives of charging the Appellant. Under these circumstances, we submit that Ground 11 should be upheld.

INNOCENCE OF THE OFFENCE

Ground 2:

The Appellant was not given a fair opportunity to present his case and all the statements, reports and witnesses’ evidence was not provided to him before the hearing.

In relation to Ground 2 we submit that even though Mr Leo Alauro made a couple of investigation reports, the first one in the second week of August 2001 and the other on the 16th June 2003, these reports were never made available to the Appellant. All the reports became more or less privileged or secret documents and it made it impossible for the Appellant to obtain them.

The Appellant was never informed of how many witnesses the Respondents were going to call and their statements were never made available. The airline tickets and accommodation documents clearly shows that the two witnesses we arranged to travel to Port Moresby two days prior to the hearing.

All this time, the Appellant was taken by surprise and this clearly indicates unfair play by the Respondents and the Appellant was denied of the opportunity to have documents prior to the hearing.

We submit that ground 2 of this appeal should be upheld.

Ground 10:

The Appellant was found guilty and the Disciplinary Board recommended for his dismissal. The Appellant was not given an opportunity at the first place to prepare his case because the Investigation Reports and witness statements were not provided to him. When the Disciplinary Board decided on the penalty, they should have at least given the Appellant the opportunity to address on the penalty. The Disciplinary Board without according the Appellant that opportunity, they recommended to the Commissioner for his dismissal.

On the case of Philip Kume vs The Police Commissioner, Department of Police and the State, unreported Judgement No. 2084, His Honour Injia J held that at page 14 that:

"In my view, it is only a natural extension of the principle of the audit alter am partem leg of the principle of natural justice adopted in Section 59 of the Constitution and applied in such cases Kelly Yawip and Pierson Joe Kamagip that the opportunity to address on penalty be given at the appropriate time before the punishment is determined and pronounced."

In the present case, the Disciplinary Board found the Appellant guilty. After finding him guilty, they should have given the Appellant an opportunity to address on the punishment or penalty, which was the dismissal.

The Disciplinary Board failed to give any opportunity and applying the principles of natural justice as applied in the above case; we submit that the conviction and recommendation for dismissal should be dismissed. Had the Board allowed the Appellant to address on the punishment, he could have addressed on what punishment should be imposed. The Disciplinary Board clearly breached the rules of natural justice and the established principles and therefore we submit that the decision should not stand.

We submit that pursuant to Section 46 (3), the Appeals Tribunal may confirm, annul or vary the decision appealed against. All the grounds of the Appeal has been argued and it is our respectful submission that the Tribunal should annul the decision and discharge the Appellant.

TRIBUNAL’S OBSERVATIONS

Brief Background

1. 	Appellant – Commanding Officer of Biru Correctional Service Institution

2. 	Charge under Section 39 (f) – For disgraceful or improper conduct either in his official capacity or otherwise.

2.1 	Facts allege against the Appellant were as follows:

	Between the last week of June, on 29th June and 1st July 2001, whilst being the Commanding Officer of Biru Corrective Institution, removed two .38 pistols, one Winchester shot barrel and a large quantity of ammunitions and delivered/caused to be delivered to criminals at Popondetta for that use.

3. 	Appellant pleaded not guilty to the charge.

4. 	Case for Pros. Open

4.1 	Witnesses called and testified before the Disciplinary Board.

4.1.1 	CO 3823 Gabriel Cornelius – Institutional Armourer. Statement of Facts re: missing firearms – 11/07/01 (some 10 days later after the event).

4.1.2 	Mr Fogi Manunda – gave evidence at the trial; refer to another co-accused who went to Appellant’s residence on a Friday night. Mobil arm robbery took place on 02/07/01.

	(Accomplished – Charlie Pukari and Ensel Ensel and Arthur Melange).

5. 	Documents tendered in evidence.

5.1 	Statement by Senior Inspector Jocelyn N. Hauvari – meeting in Commanding Officer’s Office – sat on a cushion that has some .38 bullets (undated). Sunday 01/07/01 and Monday 02/07/01.

5.2 	Statement by CIP 1699 Richard Teremina – 28/03/2003. Meeting in CO’s Office on 03/07/01 and felt the .38 bullets under one of the cushion chairs – blame go the Commanding Officer.

5.3 	Superintendent Leo Alauro. In 2nd week of August 2001 did carry out an internal investigation. Advised Commissioner that no action be taken until Police investigation was completed (Report – 23rd August 2003). In June 2003, after 2 years – no Police action – Commissioner dispatched him – to further investigation and charge the Appellant under s. 39 (9) of Correctional Service Act.

6. 	Appellant in defence maintain his innocence.

6.1 	Appellant did not give evidence nor call witnesses to give evidence.

6.2 	Provide – a confidential report on file – dated. Additional documents tendered during appeal.

7. 	Witness statement in affidavit – by alleged co-accused Ensel Ensel who was referred to be Fogi Manunda – 10/11/03 – denied any knowledge about Appellant giving the arms to him. First time saw him at Police Station at Popondetta.

8. 	Investigation Report by Sgt a/OIC/CID Kehari Begola dated 02/09/03. Tendered by Appellant on 14/04/04 upon Tribunal’s investigation. Letter addressed to a/PPC Popondetta. Report that four (4) youths were arrested including Appellant son Arthur Melange. They have no knowledge about the boy but was found at the side of the river when the boys were arrested after being wounded. They were:

(i) Charlie Pukari
(ii) Forgie Manunda
(iii) Peter G.
(iv) Tony Oki

	Not cooperative to expose how they were in possession of the firearms later confirmed missing from Biru Correctional Service.

	NB: Conclusion – Armourer/CO will explain as they were the ones who have access to the office. Firearms confiscated to CIS Popondetta.

9. 	Police/CID investigation into CIS Firearm – 71-12-04-04 Saga – Biru Gaol, Popondetta, Oro Province dated 15/04/04.

	Tendered by Respondent Counsel

	Revealed that Sgt Sepapa did carry out the investigation and arrested two suspects and charged them. Due to Court files – hand-up brief not ready – matter withdrawn – by Popondetta District Court – Efforts made to retrieve the file to no avail – Manage to obtain six (6) witnesses statement – 23/12/03.

	No HUB completed – Firearms used in the arm robbery were never sent to Police Forensic Laboratory for ballistic tests and also to counter-check and verify link between the CIS Biru Gaol and ended up with criminals in Popondetta.

	Opinion – no prior B & C at CIS Commanding Office and armory safe – appearing like inside job.

	General conclusion is that there is some degree of suspicion in the circumstance of this case, but unable to point a finger at the time when the investigation was concluded.

	But suggest that Police/CID investigation will continue until the real culprits will be soon arrested and charged.

	There is one vital witness to be interviewed and statement taken – who could this be.

10. 	Tribunal’s observation 

10.1	Sgt Sepapa – Investigation failed to produce accused statements/ROI, if any in the likes of:

(i) Charlie Pukari
(ii) Forgie (Fogi) Manunda
(iii) Peter G.
(iv) Tony Oki

10.2 	Sgt Dukur – Investigation reveal certain suspicion, but lack substantive evidence to link the CIS personal CO/Armourer or any others who would have access to CO’s office that house the armour safe. 

	Six witnesses interviewed – their statements were not annexed nor reveal the relevant connection with the issue before the Tribunal.

10.3 	Whilst slow pace Police/CID investigation is still under way though two suspects were charged and later discharged by Court for Police failing to complete the HUB. This does not stop the Police to complete their task and charge those responsible for the arm robbery at the Service Station on 02/07/01.

11. 	Service Station Arm Robbery

	The thorough investigation into this incident is very vital to the mystery that hang over the link between the Biru CIS Armour safe and the criminals who were found by Police in possession of the firearms allegedly used in the arm hold-up and stealing and later confirmed that they were the arms that allegedly went missing from Biru Correctional Service armour safe.

Mr David Keta: Applicant
Mr Chris Waiange: Respondent