N2398

PAPUA NEW GUINEA

[Leadership Tribunal]

IN THE MATTER OF - The Reference by the Public Prosecutor pursuant to Section 27 (2) of the Organic Law on Duties and Responsibilities of Leadership

AND IN THE MATTER OF - The Tribunal appointed under Section 27 (7) (e) of the Organic Law on the Duties and Responsibilities of Leadership

AND IN THE MATTER OF - The allegations of Misconduct in Office by Hon. Michael Nali, MP, Member for Mendi Open and a Member of Southern Highlands Provincial Assembly.

Waigani.
Gavara-Nanu J, Frank Manue, Patrick Monouluk, SMS.
2003: 07th, 23rd, 24th, 25th, 28th & 29th April

PRACTICE AND PROCEDURE – Leadership tribunal proceedings - No case to answer – Appropriateness of a no case submission in leadership tribunal proceedings – The test to be applied in a no case submission - Differences in the nature of investigations done by the Ombudsman Commission and the Leadership Tribunal.

Cases cited:
In re James Mopio [1981] PNGLR 416
The State –v- Paul Kundi Rape [1976] PNGLR 96 
Timothy Bonga -v- Justice Sheehan and 2 Ors – N1512

Counsel:
C. Sambua for the Public Prosecutor
G. Shepherd for the Leader

29th April, 2003

GAVARA-NANU J, FRANK MNUE, PATRICK MONOULUK SMS: At the close of the prosecution case on Friday 25th April, 2003, the defence indicated that it would make a No Case submission on Monday 28th April, 2003, which is yesterday. Upon resumption of the hearing yesterday (28th April,2003), the defence asked the Tribunal to discharge the leader Hon. Michael Nali on each of the four charges of misconduct in office laid against him, on the basis that there was either no or insufficient evidence to substantiate the charges. In other words the defence submitted that there was no case against Mr Nali on all four charges.

It is convenient that we deal firstly with the issue of whether the leadership tribunal (hereinafter referred to as ‘the tribunal’) can hear or allow a No Case submission by the defence during the leadership tribunal proceedings as we did yesterday, since this issue was raised by Mr Sambua in the final leg of his submissions. He argued that the tribunal should not entertain a No Case submission at this stage of the proceedings because if we did, it would amount to abrogating our function to investigate or inquire into the four charges laid against the leader. The essence of his argument as we understand it is that, if we allow such a process to be applied, it would interfere with the process of our inquiry into the charges, and that may also be the end of the inquiries if we were to find that the leader has no case to answer. 

In support of this argument, it was submitted that, the leadership tribunal is different to a judge presiding over a criminal trial where the procedure is strictly adversarial. Mr Sambua argued that the tribunal’s function is to investigate into the allegations as provided under s. 28 (1)(g) (i) of the Constitution and s. 27 (4) of the Organic Law on Duties and Responsibilities of Leadership (hereafter referred to as ‘the Organic Law’), therefore it is not appropriate for the tribunal to entertain the No Case submission at this stage of the proceedings. Mr Sambua further argued that our role is similar to that of the Ombudsman Commission inquiring into the allegations against the leader and in that sense the proceedings before us are inquisitorial.

We cannot accept Mr Sambua’s contention that the tribunal’s role and function are similar to those of the Ombudsman Commission. The tribunal’s role and functions are different to those of the Ombudsman Commission, because the proceedings before the tribunal are conducted under the adversarial process where matters are pleaded and evidence and issues are called and litigated by the prosecution and the defence. The prosecution has the burden of proof to prove the truth of the matters alleged against the leader to the reasonable satisfaction of the tribunal with clear, cogent and convincing evidence, see In re James Mopio [1981] PNGLR 416. And the tribunal has the duty to act judicially and to comply with the principles of natural justice. The reason being, the tribunal has the power to recommend penalties against the leader which includes dismissal from office, if the leader is found guilty of misconduct in office.

Whilst the tribunal is not bound by technical rules of evidence in its investigations into the matters alleged against a leader, the fact that the tribunal is required to act judicially and to comply with the principles of nature justice, and that the standard of proof applied is beyond the balance or the preponderance of probabilities, means that the inquiries before the tribunal are quasi judicial, whereas the Ombudsman Commission’s inquiries or investigations being non litigious are not quasi judicial, see In re James Unopio (supra). Further more, the Ombudsman Commission only has to be satisfied that the leader is prima facie guilty of misconduct in office. And further still, the findings of the Ombudsman Commission ultimately have to be proved before the tribunal, see Timothy Bonga -v- Justice Sheehan and 2 Ors – N1512.

With such differences in their roles and functions, the proceedings or the inquiries before the tribunal cannot be equated with those before the Ombudsman Commission.

These differences are seen clearly in ss. 17 (c), 20, 21 and 27 (4) of the Organic Law and ss. 28 and 29 of the Constitution.

This brings us to the next point, viz., the appropriateness of the No Case submission in the leadership tribunal proceedings. Under s. 27 (4) of the Organic Law, the tribunal is empowered to make due inquiry into the matters referred to it. In our view, this provision gives the tribunal unfettered discretion to apply such processes and procedures including a No Case submission by the defence, if they are for the fair and proper disposition of the matters before it. 

Therefore, we consider that to allow the defence to make a No Case submission at this stage is a fair process because if we consider that the leader has a No Case to answer, then it means that the prosecution which carries the onus of proof has not adduced any evidence against the leader in respect of the particular charge. In which case, the leader should not be put through the unnecessary expenses and anxieties of having to defend the allegations which the prosecution cannot prove. Such a process is also not only necessary to narrow the issues for the tribunal but also to ensure that the tribunal does not have to spend unnecessary time in inquiring into such matters.

The next question that arises is, what is the appropriate test to be applied in a No Case submission in leadership tribunal proceedings?

We are of the view that the proper test to apply is not the same as those applied in a criminal proceedings as in The State -v- Paul Kundi Rape [1976] PNGLR 96. The reason being, the standard of proof applied differ between the two proceedings and that, they differ in their character and nature in that, one is strict judicial proceedings while the other is a quasi judicial proceedings.

We are nonetheless of the view that we can use the tests or the principles applied in Paul Kundi Rape (supra), as guide, as the test we have suggested in the leadership tribunal proceedings also relates to whether there is any evidence at all against the leader, which would warrant the tribunal to inquire into the matter. The test is not whether there is some evidence against the leader, because once it is established that there is some evidence against the leader then the tribunal has the duty to inquire further into the matter and the leader must answer to the charge or allegation. Thus a No Case submission in a leadership tribunal proceedings should only succeed in a very clear case where there is no evidence at all against the leader on the matter alleged against him.

As we said, we do not consider the principles stated in The State -v- Paul Kundi Rape (supra) applicable in the leadership tribunal proceedings. To apply them in the tribunal proceedings would effectively be applying a test which in our view is too ridged and high.

Thus applying the test as we stated here, we have found that after the close of the prosecution case, there was not an iota of evidence or no evidence at all against Hon. Michael Nali on charge No.3 which would require us to inquire into it. It was clear after the close of the prosecution case that, the prosecution had no evidence at all against the leader on the charge.

The tribunal’s power to investigate a matter referred to it is based on the materials which are already adduced before it by the prosecution. It has no power to inquire into matters which are outside of such matters.

We consider that it is proper that we only briefly state our reasons in respect of each of the allegations or charges as to whether Hon. Michael Nali has a case to answer. 

Allegation 1:	We find that Hon. Michael Nali has a case to answer on this allegation because there is evidence that he led the crowd of people who and went and assembled at the gate leading to the counting centre, in the evening of 27th March, 1999.

Allegation 2:	We find that Hon. Michael Nali has a case to answer on this allegation because there is evidence that in the evening of 27th March, 1999, he demanded the counting to stop and his dressing at the time only in underpants offended some members of the public who were in and around the counting room.

Allegation 3:	We find that Hon. Michael has no case to answer on this allegation because there is no evidence either directly or indirectly that he instigated the gathering of the crowd at Kagua Government station on either on 27th March, 1999, or on 28th March, 1999, which allegedly threatened physical violence and destruction of the government station and other properties.

Allegation 4:	We find that Hon. Michael Nali has a case to answer on this allegation because there is evidence that he was acting together with Mr Luta in demanding the counting to stop both in the evening of 27th March, 1999 and the morning 28th March, 1999.

It follows that allegation 3 is dismissed. Thus Hon. Michael Nali will only answer to allegations 1, 2 and 4.
________________________________________________________________
Lawyers for prosecution : The Public Prosecutor
Lawyers for the leader : Maladina Lawyers.