N7194 (LT)

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

THE LEADERSHIP TRIBUNAL APPOINTED PURSUANT TO SECTION 27(2) AND 27(7)(e) OF THE ORGANIC LAW ON DUTIES AND RESPONSIBILITIES OF LEADERSHIP

AND
IN THE MATTER OF THE HONOURABLE BELDEN NAMAH, MP (“the Leader”), MEMBER FOR VANIMO-GREEN OPEN

REFERENCE NUMBER LT. NO. 6 OF 2015

BEFORE:
HONOURABLE JUSTICE TERENCE J. HIGGINS – Chairman
HER WORSHIP MS. PATRICIA TIVESE – Senior Principal Magistrate – Member
HIS WORSHIP MR. ALEX KALANDI – Senior Magistrate - Member

Waigani:
2017:	18th, 19th, 20th October,
7th - 10th November
2018:	9th April

LEADERSHIP TRIBUNAL – referral by Public Prosecutor – Member of Parliament -misconduct in office – attempting to arrest Chief Justice – seeking dismissal of District Administrator – failure to lodge accurate returns on time with Ombudsman Commission – with Integrity of Political Parties and Candidates Commission – Quaere power of Registrar to impose fines

PENALTY – recommendations for dismissal and fines for late and inaccurate returns - acquittal on charge relating to seeking dismissal of District Administrator

Cases Cited:
Papua New Guinea Cases

Albert Karo v Ombudsman Commission N1383 
Application pursuant to Section 155(4) by John Mua Nilkare SC 536
Hon Belden Namah v Tribunal and others [2016] N6397
In the matter of Hon. Sir Moi Avei [2007] PGLT 4
In re Gallus Yumbui [2007] PGLT 2
In re Knight [2015] PGLT 3
In re Michael Somare [2011] PGLT 1
Paulus Pawa v The State (1981) PNGLR 498
Re Sigulogo [1988] PGLT 2
Supreme Court Reference No. 2 of 1992 [1992] PNGLR 336
The State v Kais Pohien (2016) N6350

Overseas Cases

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Dietrich v R (1992) 177 CLR 292
Emmanuel v Dau [1995] ACTSC 196
Jago v District Court of NSW (1989) 168 CLR 23
LM v Childrens Court of ACT & DPP [2014] ACTSC 26
Nudd v R [2006] HCA 9; 80 ALJR 614; 162A. Crim R 301; 225 ALR 161
Re application by TS [2002] ACT SC 102
R v Delly [2003] ACTSC 113
R v Forsyth [2013] ACTSC 179
R v Griffin [2006] ACTSC 77
R v Griffin [2007] ACTCA 6
R v Upton [2005] ACTSC 52
S & B Pty Ltd v Podobnik (1994) 53 FCR 180

Counsel:

Mr. P. Kaluwin with Mr. F. Popeu, Counsel Assisting the Tribunal
Mr. G. Sheppard with Mr. G. Purvey & Mr. P. Tabuchi, Counsel for the Leader

09 April, 2018

1.	HIGGINS, J – Chairman & Ms. PATRICIA TIVESE, SPM - Member:  On 28 September 2017, Salika DCJ, then Acting Chief Justice of Papua New Guinea, appointed us to constitute a Leadership Tribunal to enquire into and determine allegations of misconduct in office brought against the Hon. Belden Namah, MP, Member for Vanimo-Green Open in the National Parliament (the Leader).

2.	As a matter of history, a previous Tribunal was convened pursuant to a request from the Public Prosecutor dated 14 August 2015 following a Referral from the Ombudsman Commission made on 13 April 2015, to Chief Justice Injia.  That led to the appointment of a Tribunal comprising Poole J, a National and Supreme Court Justice and Senior Magistrates Mark Selefkariu and Ernest Wilmot.

3.	By order of Cannings J of 2 September 2016 that Tribunal was permanently stayed from further proceeding due to reasonable apprehension of bias on its part.  That arose out of a challenge to the decision of the Chief Justice to appoint the Tribunal as one of the allegations concerned the interruption of proceedings before the Chief Justice by the Leader.  The argument was raised that the Chief Justice could not validly appoint the Tribunal by reason of personal interest.  That contention was dismissed but Cannings J found that the role the Tribunal took in those proceedings before him raised a reasonable apprehension of bias on its part towards the Leader (see Hon Belden Namah v Tribunal and others [2016] N6397).

4.	Following that decision, the Public Prosecutor, on 8 November 2016, wrote to the Chief Justice requesting the appointment of another Tribunal to inquire into the allegations initially referred in April 2017.  That Referral had particularized 15 allegations of misconduct in office.

5.	In the current request, the Public Prosecutor has deleted some of those allegations and requested inquiry into only 5 categories of allegations.

6.	These are:

CATEGORIES OF ALLEGATIONS AS DETERMINED BY THE PUBLIC PROSECUTOR PURSUANT TO PART C 1.2 (b) OF THE PROTOCOL FOR THE APPOINTMENT OF LEADERSHIP TRIBUNALS AND CONSTITUTIONAL OFFICE HOLDERS RIGHTS TRIBUNAL BY THE CHIEF JUSTICE

CATEGORY 1

INTERFERENCE WITH THE ADMINISTRATIVE PROCESS – SUSPENSION OF DISTRICT ADMINISTRATOR CONRAD TILAU

It is alleged that on the 14th August 2007 the Leader demanded for the removal, suspension and discipline of Conrad Tilau, Vanimo-Green District Administrator; and directed that his staff, John Salle be appointed as Acting District Administrator without lawful authority.

It is therefore alleged that the leader is guilty of misconduct in office under Section 27(5)(b) of the Constitution

CATEGORY 2

IMPROPER CONDUCT AND ABUSE OF POWER WHEN LEADER STORMED THE SUPREME AND NATIONAL COURT BUILDING WHEN COURT WAS IN SESSION AND DEMANDED THE IMMEDIATE RESIGNATION AND ARREST OF THE CHIEF JUSTICE

It is alleged that on the 24th May 2012 the Leader in company of some policemen and soldiers went into Court Room Number Three (3) while Sir Salamo Injia, Chief Justice was presiding over matters and interrupted court proceedings by shouting in a threatening manner and demanded for the immediately (sic) resignation and arresting of the Chief Justice.
 
It is therefore alleged that the leader is guilty of misconduct in office under Section 27(5)(b) of the Constitution

CATEGORY 3

LATE OR NON SUBMISSION OF ANNUAL STATEMENT FOR THE PERIOD 6th AUGUST 2007 TO 5th AUGUST 2012

It is alleged that between 17th September 2008 and 17th December 2012 the Leader failed without reasonable excuse or was late in submitting his annual statement to the Ombudsman in accordance with Section 4(1) of the Organic Law on the Duties and Responsibilities of Leadership
 
It is therefore alleged that the leader is guilty of misconduct in office under Section 4(6)(a) of the Organic Law on the Duties and Responsibilities of Leadership

CATEGORY 4

KNOWINGLY OR NEGLIGENTLY GIVING FALSE, MISLEADING OR INCOMPLETE STATEMENT IN HIS ANNUAL STATEMENT TO THE OMBUDSMAN COMMISSION FOR THE PERIOD AUGUST 2006 TO AUGUST 2007.

It is alleged that on or about the 14th November 2007 and on or about the 5th September 2008 the Leader knowingly or negligently gave his annual statement to the Ombudsman Commission for the periods 6th August 2006 to 5th August 2007 in accordance with Section 4(1)(b) of the Organic Law on the Duties and Responsibilities of Leadership (OLDRL) that contained false, misleading or incomplete information.
 
It is therefore alleged that the leader is guilty of misconduct in office under Section 4(6)(b) of the Organic Law on the Duties and Responsibilities of Leadership

CATEGORY 5

FAILURE TO LODGE FINANCIAL RETURNS TO THE OFFICE OF INTEGRITY OF POLITICAL PARTIES AND CANDIDATES COMMISSION AS WINNING CANDIDATE FOR 2012 GENERAL ELECTIONS

It is alleged that from the 8th November 2012 to 26th October 2015 the Leader failed to file a financial return as required by Section 68 of the Organic Law on the Integrity of Political Parties and Candidates 2003
 
It is therefore alleged that the leader is guilty of misconduct in office under Section 27(5)(b) of the Constitution

Dated this 8th day of November 2016

        (Signed)
PONDROS KALUWIN
Public Prosecutor

7.	Under the OLDRL, s.27(4):

“The Tribunal shall make due inquiry into the matter referred to it, without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.”

8.	Subsection (5) provides:

“If the tribunal finds that a person to whom this law applies is guilty of misconduct in office, it shall recommend to the appropriate authority that -

(a)	he be dismissed from office or position; or
(b)	as permitted by Section 28(1A) (further provisions relating to the Leadership Code) of the Constitution and in the circumstances set out in that subsection some other penalty provided for by an Act of Parliament be imposed.

(6)	The Tribunal shall announce its decision in public, and shall send a copy of the decision to the Speaker, for presentation to the Parliament, and to the National Executive Council …”

9.	The “appropriate authority”, pursuant to s.27(7) is defined as the authority to whom in accordance with Section 28(1)(g)(ii) or Section 28(1A) of the Constitution, a recommendation under that provision in relation to him (or her) should be made.”  That is a reference to enabling an Organic Law to provide that if a tribunal finds that–

“(a)	there was no serious culpability on the part of the person found guilty of misconduct in office and
(b)	public policy and the public good do not require dismissal,

it may recommend to the appropriate authority that some other penalty provided for by law be imposed.”

10.	The “appropriate authority” in the case of a member of Parliament, is the Head of State, ie the Governor-General.

11.	Pursuant to the Leadership Code (Alternative Penalties) Act 1976, the alternative penalties to dismissal from office are, relevantly, that the leader, as provided by s.2 thereof-

“(a)	be fined an amount fixed by the tribunal, not exceeding K1000.00; or
(b)	be ordered by the appropriate authority to enter into his [or her] own recognizance in a reasonable amount, not exceeding K500.00, fixed by the tribunal that he [or she] will comply with Division 111.2 (Leadership Code) of the Constitution and with the Organic Law during a period fixed by the tribunal, not exceeding 12 months from the date of the announcement, under Section 27(6) of the Organic Law, of the decision of the tribunal; or
(c)	be suspended, without pay, from office or position for a period not exceeding three months from the commencement of the suspension, or
(d)	be reprimanded, or … [not relevant].”

12.	Section 27 (Leadership Code) of the Constitution prescribes the conduct of a leader which may constitute misconduct in office:

“(1)	A person to whom this Division applies has a duty to conduct himself [or herself] in such a way, both in his [or her] public or official life and in his [or her] private life and in his [or her] association with other persons, as not –
(a)to place himself [or herself] in which he [or she] could have a conflict of interests or might be compromised when discharging his [or her] public or official duties; or
(b) to demean his [or her] office or position; or
(c) to allow his [or her] public or official integrity, to be called into question; or
(d)to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.”

13.	A person offending against this provision is deemed guilty of misconduct in office.

14.	It is to be observed that the monetary limits to fines and recognizances were set in 1976.  It may be time to review the adequacy of those limits.

15.	The role of the Ombudsman Commission is to investigate the conduct (inter alia) of leaders and if of the opinion that a prima facie case of misconduct in office exists, to refer the matter to the Public Prosecutor.  That officer then determines whether or not to refer the allegations or any of them to an appropriate Tribunal.

16.	As noted the Ombudsman Commission referred 15 allegations of misconduct in office to the Public Prosecutor.  The Public Prosecutor seeks to pursue only 5, being the categories of misconduct set out above.

17.	It follows that this tribunal may only adjudicate on those allegations that the Public Prosecutor now seeks to pursue.

18.	The Tribunal assembled on 16 October 2017. The parties asked for time to refresh their memories of the Referral and Statement of Reasons.  Given that the matter had been referred to this tribunal on 28 September 2017 and been the subject of a previous tribunal hearing in 2015 this was, perhaps, a little surprising.  However, the tribunal acceded to the request and adjourned to 18 October 2017 at 9:30am.

19.	An objection was raised at that point by Mr. Sheppard (with Mr. Purvey & Mr. Tabuchi) of counsel for the Leader, that the previous tribunal, though permanently enjoined from proceeding and, in any event its Chairman, Poole J, having retired, had not formally been declared functus officio.  The Public Prosecutor, Mr. Kaluwin (with Mr. Popeu of counsel) submitted that the effect of Cannings J’s decision was that a newly constituted tribunal was required.

20.	The tribunal agreed with that latter submission and the hearing continued.  The Public Prosecutor advised the tribunal that it was proposed to proceed on the five (5) categories of allegations referred to above, no.1 relating to the Leader’s alleged interference in the administration of the Vanimo-Green administration by demanding the removal, suspension and/or discipline of Mr. Conrad Tilau, then Vanimo-Green District Administrator and by directing that his staff [member] Mr. John Salle be appointed as Acting District Administrator without lawful authority.

21.  Number 2 alleged “Improper conduct and abuse of power when Leader stormed the Supreme and National Court building when court was in session and demanded the immediate resignation and arrest of the Chief Justice.”  That was alleged to have occurred on 24 May 2012.

22.   The 3rd category alleged late or non-submission of Annual Statements for the period 6 August 2007 to 5 August 2012.

23.   This related to 5 such returns.  The Leader concedes that he is guilty as charged.

24.  	The 4th category alleges that in his Annual Statement for the period 6 August 2006 to 5 August 2007, the Leader provided, knowingly or negligently, false, misleading and/or incomplete information.

25.	The Leader concedes that allegation.

26. 	The 5th category alleges failure to lodge financial returns to the office of Integrity of Political Parties and Candidates Commission as a winning candidate for the 2012 General Election.

27.  	The Leader also concedes that allegation.

28.  	On 20 October 2017 evidence was led by Mr. Popeu (in the absence of Mr. Kaluwin).  An affidavit of Ms. Pavora Marupi was tendered (exhibit 1) only paragraphs 1, 2 and 6 were deemed relevant and admissible.  The last paragraph (6) records the statements made in Court by the Leader.

29.   The records of the occasion, oral and written show that the Leader entered the court room, interrupting Mr. M. Wilson of counsel who was making submissions on behalf of Ms. Tiffany Twivey as to why she should not be charged with contempt.

30.	As recorded, the Leader said:

“Chief Justice, I want your immediate resignation now.  Resign now Chief Justice, your immediate resignation.  You are not a credible person.  You are bringing country down.  You have got to respect the people of Papua New Guinea.  You are only one man, you are bringing this country down.  Arrest him, follow him. Arrest him, arrest him, Arrest him.  Enough is enough.  Enough is enough.  Take him straight to the car.  Paitim em [ie seize him].  Arrest him.  He asked for it, he will get it.”

31.	This tirade was in a loud voice and addressed to members of the police force and armed services accompanying the Leader.  In the course of it, the Chief Justice exited the court room.

32.	Mr. Tongia Kekebogi was then Acting Associate to the Supreme Court Listing Judge.  The Chief Justice was presiding.  During the submissions being made by Mr. Wilson, Mr. Kekebogi deposed (ex 2) “The Deputy Prime Minister Hon. Belden Namah, MP accompanied by some policemen dressed in civilian clothes and another MP whom I recognized as Hon. Jamie Maxton Graham stormed into the court room.”

33.	We pause there to acknowledge that Mr. Sheppard took exception to the word “stormed” as overdramatic.  According to the Collins English Dictionary, to storm into or out of a place … “you enter or leave it quickly and noisily, because you are angry.”  “If you storm, you say something in a very loud voice, because you are extremely angry.”  

34.	Having heard the tape of the Leader’s statements, we would respectfully concur with the use of the term “stormed” as appropriately describing the Leader’s actions and demeanor.

35.	Mr. Kekebogi then deposed that as 3-4 policemen rushed toward the Chief Justice as directed by the Leader, the Chief Justice exited the court room.  His Associate, Mr. Allan Dian followed and shut the door in an attempt to prevent the attackers from following.  However, they forced it open, punched Mr. Dian and pulled him back into the court room.  He fell down, bleeding on the left side of his face.

36.	The attackers entered the corridor, apparently searching for the Chief Justice.  In cross-examination, Mr. Kekebogi agreed that the Leader himself did not follow the Chief Justice but remained with other politicians.  In that context, he recognized Mr. Francis Awesa, MP as well as Mr. Jamie Graham, MP.

37.	Mr. Norman Mega was the Court Attendant. Accompanying the Leader, he recognized Hon. James Marape MP.  There were soldiers and police in uniform. (ex 3).

38.	Mr. Allan Dian was also called.  His affidavit is ex 5.  About 1:30pm on 24 May 2012, he deposed that he was with the Chief Justice in court room 3 at Waigani, when (par 5):

“While we were in the middle of Ms. Twivey’s case, Mr. Namah in the company of some of the members of the Parliament ie., Jamie Maxton Graham, Francis Awesa and 2 or 3 others together with 30 to 40 policemen and defence force pushed hard the door of the court room no.3, which we were in.”

39.	We accept that the estimate of 30-40 may be somewhat exaggerated as may be the number who rushed forward to carry out Mr. Namah’s demand.  Mr. Dian was assaulted by being punched in the head cutting his face just below his left eye.

40.	In cross-examination, he stated that the door to court room 3 had been pulled open hard with a loud noise as it banged against the wall.  He understood the Leader was at the time Defence Minister.  He agreed his impression of the number of accompanying persons was “rough”.

41.	In light of the fact that the further witness Mr. Ian Augerea was absent on duty, we did not receive his affidavit into evidence.  He was not, however, offered as an eye witness to the events in court room 3.

42.	Mr. Sheppard called no evidence.  We therefore do not have the benefit of any evidence from the Leader explaining his extraordinary behaviour on 24 May 2012.  It is, or should be, apparent that even if there was a valid criminal complaint against any person, let alone a sitting judge, a warrant of arrest is a requirement to a lawful arrest where the circumstances could not justify arrest without warrant (see Arrest Act 1977 s.8).  It is difficult to imagine circumstances which, in any event, would justify the issue of an arrest warrant rather than a summons against a person of the standing of the Chief Justice.

43.	Mr. Sheppard did not dispute any of those matters.  He advanced two arguments, first, that the Chief Justice had not sought to deal with the Leader or any of his followers or accomplices for contempt. There had been reconciliation, a Melanesian solution.  To proceed now to dismiss the Leader would revive the original tense situation and undo the good will that the Chief Justice’s forbearance had generated.

44.	The second submission focused on the delay since the behaviour complained of.  That delay comprised not only the original delay until 6 April 2015, but the further delay up to and including the date of the current reference.  That is a permissible and relevant consideration (see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; S & B Pty Ltd v Podobnik (1994) 53 FCR 180).

45.	However, an application for a stay of these proceedings on the grounds of undue delay is not one this tribunal has jurisdiction to entertain.  In fairness, it was not so submitted by Mr. Sheppard.  Rather, he urged the view that, by reason of that delay, the tribunal should impose no penalty.

46.	In support of that contention, he referred to the fact that since the event complained of, despite it being notorious, the Leader had twice been returned as the member for Vanimo-Green.  To now impose dismissal would fly in the face of those electors and deny them their choice of representative.  He further raised an issue that it appeared other leaders were present but not singled out by the Ombudsman Commission for referral.

47.	Mr. Popeu, for the Public Prosecutor, submitted, very simply, that in all the circumstances, no other penalty would suffice than dismissal from office.

48.	Guidance on various issues may be taken from prior decisions both of Leadership Tribunals and the Supreme Court.  Clearly, this tribunal must respectfully follow prior Supreme Court decisions.

49.	In Supreme Court Reference No. 2 of 1992 [1992] PNGLR 336, Kidu CJ, Amet, Los and Andrews JJ, (Kapi DCJ dissenting) held that, a leader may lawfully avoid a referral by resigning his or her office or position.

50.	The majority held however:

•	The purpose of the Leadership Code is to preserve the people of Papua New Guinea from misconduct by its leaders.
•	That is to be achieved both by deterring and punishing such breaches.
•	The Code can only be invoked against persons who hold current leadership office.
•	A person who has held leadership office may be dismissed from a subsequently held leadership office if guilty of misconduct in the earlier office and may be dismissed from that subsequently and currently held leadership office.
•	The sanction of dismissal entails a finding that the leader is unworthy of continuing in office.

51.	The Court emphasised (at 145) that:

“One of the main sanctions of the Leadership Code is to prevent continuance in office of unworthy people; and thus it is that a person holding a current leadership office may be proceeded against in respect of alleged misconduct in leadership office which he had formerly held, and if found guilty, dismissed from his current office.”

52.	Examples of conduct warranting dismissal from office were referred to.  These were:

•	Re Sigulogo [1988] PGLT 2

Member of Parliament requested K30,000 to support overseas logging operations.

Held to be serious offences characterised as corruption and use of office for personal gain.

•	In re Gallus Yumbui [2007] PGLT 2

Leader purchased a vehicle using public funds for use as an ambulance in his electorate but instead used the vehicle for his own private purposes and did not disclose that benefit in his returns.

Held to be serious misconduct warranting a recommendation for dismissal.

•	In the matter of Hon. Sir Moi Avei [2007] PGLT 4

Leader disbursed District Support Grant funds without ensuring their proper application to infrastructure projects for which they were intended.  He failed to pay rentals for his housing despite receipt of housing allowances and omitted to disclose such liabilities in his annual returns.

Held that was serious misconduct.  This Leader’s personal qualities and achievements did not detract from the objective characterisation of the conduct in question.  Good public policy demanded a recommendation for dismissal.  Fines were imposed for failure to meet and to disclose rental obligations.

•	In re Knight [2015] PGLT 3

This Leader, a member of Parliament, improperly applied public funds to purchase a vessel without disclosing a conflict of interest.  The conduct bordered on criminal misappropriation.

Held Conduct in office falling within the realms of crime reflects very serious culpability.  In the instant case, public policy and public good demanded dismissal.  This Leader had allowed his public, official and personal integrity to be called into question.

53.	Those matters may be contrasted with In re Michael Somare [2011] PGLT 1.  Sir Michael had neglected to file Annual Returns over a number of years.  He did offer the explanation that other matters, as incumbent Prime Minister, had diverted his attention.  It was not an attempt to avoid scrutiny or cover up wrongdoing.  Nevertheless, in view of the inadequacy of fines, the tribunal, by majority, recommended a period of suspension from office with consequential loss of pay but not dismissal.

54.	We have just referred to allegation 2 as it is the most serious of the allegations made against the Leader.  It is conduct which threatened the very foundations of a free and democratic state which this country is.  It is entirely analogous to a military coup ousting a duly elected government.  The separation of the arms of government, parliament, executive and judiciary is fundamental to the structure of democratic government.  Equally fundamental is the independence within their allotted powers and responsibilities of each arm of government.  Those powers and responsibilities are set out in the Constitution.  The conduct of the Leader and those who aided and abetted him challenged the rule of law in this country.  It could only be seen by the public as an attempt by the executive to intimidate the judiciary.  The context which we can take notice of, was disputation leading to legal proceedings over the office of Prime Minister.  The Leader then supported Hon. Peter O’Neill.  He was the latter’s Deputy Prime Minister.

55.	Whilst there is no suggestion that Mr. O’Neill was in any way party to the Leader’s conduct, the attempt by the Leader to arrest the Chief Justice without lawful authority clearly had a tendency to bring the entire administration into disrepute.

56.	As we have already observed, the attempt by the Leader to arrest the Chief Justice was not only an affront to the rule of law.  It was illegal.  It was also a serious contempt of court.  It had the tendency to damage this nation’s reputation as a free and democratic society under the rule of law.  These unlawful and dangerous activities were exacerbated by the physical assault upon the Chief Justice’s Associate.  That was a direct consequence of the Leader directing officers under his command to physically seize the Chief Justice.

57.  One of the matters being considered in the Chief Justice’s court involved the Leader personally.  We do not accept that his actions were entirely altruistic.  In that context, the Leader has offered no explanation for his conduct.  Whilst that does not aid an inference adverse to the Leader, it does not deny any such inference open on the evidence.

58.	The anger and vehemence with which the Leader made his demand of the Chief Justice clearly supports an inference that the motivation of the Leader was, at least partly, personal.

59.	That the misconduct committed by the Leader was egregious and threatened the peace, order and good government of the nation is self-evident.  It was beyond serious misconduct.  The only question is whether, as Mr. Sheppard urged upon the tribunal, public policy and the public good require that dismissal of the leader be not recommended.

60.	The fact that, in the aftermath of this event, the Chief Justice did not cause contempt proceedings to be instituted is understandable.  It had the effect of allowing members of the Executive and of the Parliament to come to an accommodation in relation to the impasse between Mr. O’Neill and Sir Michael Somare.  However, that crisis having been settled without damage to the fabric of government does not mean that the kind of intervention the Leader orchestrated and led should go without appropriate sanction.

61.	The delay in the Ombudsman Commission and the Public Prosecutor causing this tribunal to be convened is regrettable.  It was in part, of course, caused by proceedings being taken to challenge the previous tribunal.  That is not to be taken as excusing the delay.  The Leader was simply exercising his rights.

62.	In criminal proceedings, an accused person has a right to a fair trial before a competent and independent tribunal.  A denial of that right enlivens a discretion to stay those proceedings, though that remedy is the most extreme to be imposed.  The touchstone is whether an accused may have a fair trial.  It is only if that cannot be afforded that a stay would be granted.  (See Nudd v R [2006] HCA 9; 80 ALJR 614; 162A. Crim R 301; 225 ALR 161; Jago v District Court of NSW (1989) 168 CLR 23; Dietrich v R (1992) 177 CLR 292.)

63.	Nudd and Dietrich concerned the right to competent counsel as an essential condition for a fair trial.  Yet, even if a trial be delayed, the lapse in fairness may be remedied by a fair retrial with competent counsel representing the accused.  It is only if delay causes such prejudice to an accused that it cannot be overcome by a fairly conducted trial that a permanent stay will be granted (see Re application by TS [2002] ACT SC 102, per Miles CJ; R v Forsyth [2013] ACTSC 179, per Penfold J; LM v Childrens Court of ACT & DPP [2014] ACTSC 26; R v Upton [2005] ACTSC 52; R v Griffin [2006] ACTSC 77 (per Crispin J : loss of crucial potentially exculpatory evidence).  R v Delly [2003] ACTSC 113 (per Higgins CJ; Crown case fundamentally flawed) Emmanuel v Dau [1995] ACTSC 196 (per Higgins J: prosecution tainted by entrapment, undue and unreasonable delay).  See also R v Griffin [2007] ACTCA 6 (per Higgins CJ, Gray & Madgwick JJ).

64.	The particular relevance of ACT cases is that from 2004, the ACT has enshrined in statute, a right to a fair trial (s.30 Human Rights Act 2004).  That right is, in this country, granted by s.37(3) Constitution.

65.	To the extent that these proceedings are analogous to criminal proceedings, a leader has a right to a fair hearing within a reasonable time.  However, as the cases indicate, the fact that there has been delay, even undue delay, does not mandate either a stay or, as is here suggested, an acquittal.  The seriousness of the misconduct committed together with the lack of any explanation or expression of remorse further militates against any response other than a recommendation of dismissal.  It is an unfortunate consequence that a local member twice re-elected is taken away from his constituents for 3 years but that is the result of the Leader’s own misconduct.

66.	It follows that we are obliged to recommend to his Excellency, the Governor-General, that on this proven allegation of misconduct, the leader be dismissed from office.

67.	We turn now to the remaining allegations.

68.	Allegation 1

Interference with the administrative process – Suspension of District Administrator Conrad Tilau

(a)	The evidence to support this allegation came from the evidence of Mr. Tilau, both on affidavit and oral testimony.  The facts to which he deposed were not disputed. Whether it amounted to misconduct in office was very much in dispute.

(b)	Mr. Tilau is and was at all relevant times a career public servant. His qualifications and integrity as an administrator are not open to question.  He clearly understands and accepts the duty of public servants to serve the government of the day, competently and impartially.

(c)	The Leader was declared elected on 28 July 2007. As a duly elected Member for Vanimo-Green River it would be expected that the Leader would work with the local administration to carry out projects of benefit to his constituents.  Indeed, local members are charged with authority to initiate and direct such projects.

(d)	On 14 August 2007, Mr. Tilau received a phone call in which he was informed that the Leader demanded that he be suspended because he had been seen with former MP for the electorate, Mr. Philip Inou.  It was, the Leader believed, a ground breaking ceremony for a project Mr. Inou had obtained approval for when local member.

(e)	Mr. Tilau wrote to the Leader on 18 August 2007 (Statement of Reasons pp 125-127):
_____________________________________________________
Office of District Administrator

Date: 18th August, 2007					Ref : ODA 11

Hon. Belden Namah
Member for Vanimo Green Open Electorate
C/O Parliament House
WAIGANI
National Capital District

My dear Honorable Member,

SUBJECT:  RE - KILIFAS TO IMONDA ROAD PROJECT.

As per your direction, I am here to provide an explanation on the small gathering at Kilifas on Saturday (11/8/07) at 11:00AM and the engagement of the equipment from an Indonesian company.

The allegation that I was escorting the former member for Vanimo Green Open Electorate to officiate at the small ceremony at Kilifas Village is not correct.

The situation regarding this project is as follows;

1.	In 2003, funding was made available to Department of Works to carry out a feasibility study on the national road alignment.  The work was completed in 2003 and a report submitted in 2004.

2.	A submission was made in 2006 to secure funding from the national government to construct the road.  Despite numerous presentations to national agencies, only K400,000.00 was made available in the beginning of this year so it was decided that a pilot track will be built.

3.	The plan to construct the pilot track was planned for July/August 2007.  The plan is for the work to be done by the Department of Works.  As the Department of Works does not have any equipment to construct the road, equipment has been hired from the Indonesian Company.  There is no contract or agreement with the contractor to build the road as alleged.  At this point in time, only two bulldozers are on hire.

4.	The gathering at Kilifas on Saturday was at the insistence of the people.  We just wanted to start work on the road as time was catching up and wet weather was catching up on us. The former member for Vanimo Green was also at Kilifas on Saturday to meet all officials invited including you, however, timing was not appropriate.  I insisted that we defer the program until you return but I had to go along with the landowners who wanted this ceremony to take place.  According to them, the ceremony was for a “bung kaikai” to talk to the spirits before work can proceed.

5.	Not all officials showed up except Works, Planning and the Chairmen of both Land Owner companies (Amgrin Holdings Ltd and Amanab 56). There was not much speech except that the former member was asked to say a few words on the project as a sign of respect for his effort in securing additional K400,000 to kick start the project.

6.	The intention of the organizing committee of the gathering was not a ground breaking ceremony at all.  There was no money given by the district to buy food for the occasion nor pigs killed by the people.

7.	We will work with you as the new member to pursue the submission already there so that funding can be secured to continue on the project.  You will have the honor to complete the project and declare it open within the next five years.

In summary, the former Member of Parliament is a leader of his own right.  He was at Kilifas on his own accord to witness a project we started and I apologize if this is seen as an insult to you.  It was never meant to be that way.

Hon. Member, as a public servant, I am obligated to work with anybody without fear of favor.  I have demonstrated this in my term by assisting the former members for Vanimo Green River Open like Hon. Wap Yawo and Hon. Micah Wes when they came into my office.

This is the open door policy I maintain in delivering services as well as maintain good relationships with the public.

Finally, there is no hidden motive in engaging the Indonesian company.  My conduct is open and transparent as I am ensuring that everything complies with Public Finance & Management Act and Department of Works approval.

I am available to discuss all issues with you so that you are in a better position to make decisions.

Thank you and God bless

      (Signed)
Conrad M Tilau
District Administrator

(f)	On 24 August 2007, Mr. Tilau wrote to his superior, the Provincial Administrator.  In that letter he sets out the message he received from the Leader.
______________________________________________________
Office of District Administrator

Date: 24th August, 2007					Ref : ODA P/F

Provincial Administrator
West Sepik Administration
PO Box 373
		VANIMO
West Sepik Province

Dear Sir,

RE – THREAT OF SUSPENSION BY MEMBER FOR VANIMO GREEN (HON. NAMAH).

Being my immediate superior, I have a duty to report on the matter above.

At about 2pm on Tuesday (14/08/07), I got a message from a supporter of the member to call him in Port Moresby on his mobile.

I called him and this is the exact words he said to me and engaged the mobile “DA, I am not happy with you.  You seem to be escorting Philip Inou around when you know that he is no longer the MP.  The road is an important national project.  I am preparing a letter to suspend you” end of quote.

I had no time to explain to him so I prepared a brief and faxed it to him.  Copy is attached.

My view on the issue is that the member is misunderstanding my roles with his electoral officer’s responsibilities or he is being ill advised.  May be as time goes by he will understand his jurisdiction so that we can work together to deliver basic services.

Yours truly,

      (Signed)
Conrad M Tilau
District Administrator

(g)	On 3 September 2007, the Leader wrote to the Provincial Administrator in the following terms:

OFFICE OF THE MEMBER FOR VANIMO – GREEN OPEN ELECTORATE – HONOURABLE BELDEN NAMAH, MP – VANIMO – GREEN DISTRICT, P.O BOX 340, VANIMO, SANDAUN PROVINCE

3rd September, 2007

The Office of the Administrator				“URGENT”
Sandaun Provincial Government
		VANIMO
West Sepik Province

Attention: Mr Joseph Sungi

Dear Sir,

SUSPENSION OF DISTRICT ADMINISTRATOR – VANIMO/ GREEN DISTRICT

You are hereby, instructed to effect the suspension of the District Administrator for Vanimo Green District on the grounds of misconduct in office by close of business Tuesday 4th September 2007.

The grounds for the suspension is that after my declaration as member elect for Vanimo Green, he allegedly facilitated and effected the Ground Breaking Ceremony for a road project at Kilifas with the former member for Vanimo Green Mr. Philip Inou, which was an insult to me as the new member-elect and therefore tantamount to insubordination.  Further, I am also concerned about his involvement in the engagement of machinery on the project without following proper tendering process.

I recommend that you appoint Mr. John Salle as Acting DA pending investigation of the alleged misconduct of the DA.

In the meantime, all properties and vehicles held by the DA should be relinquished to the Acting DA by close of business on Tuesday 4th September, 2007 until further notice.

Yours faithfully,

      (Signed)
HON. BELDEN NAMAH M.P
Member for Vanimo – Green Electorate & Minister for Forest.

(h)	This was, it may be noted, couched in terms of an allegation of misconduct and a recommendation for suspension of Mr. Tilau and “pending investigation” the temporary appointment of Mr. John Salle “as Acting DA”.

(i)	Further light is cast on these events by the “Report” furnished by Mr. Tilau dated 4 September 2014.
______________________________________________________
Office of District Administrator

Date: 04th September, 2007				Ref: ODA C/F

TO WHOM IT MAY CONCERN

REPORT ON THE INCIDENT INVOLVING THE MEMBER FOR VANIMO/GREEN & FOREST MINISTER, HON. BELDEN NAMAH AT DASI DISTRICT OFFICE

On Monday the 3rd September, 2007 at about 10:00 AM, Hon. Belden Amah [sic] entered the gate of the District Office, Dasi with a crowd of supporters behind him.  As he entered the gate, I walked towards him, welcomed him with a shake of hands and led him towards the door of the District office.  Upon entering the office, he asked “where is my office”.  I replied by saying that Minister, you requested a block in the new wing under construction so I have allocated the office to the Performance Monitoring Officer and a casual Project Officer for the Kilifas – Imonda – Iafar Pilot Track.  He then asked who that Project Officer is.  I responded by saying “Mark Sindek”.  Upon hearing Mark Sindek’s name he flew into a rage and banged his fist twice on the top of the short partition in the reception area and yelled at the top of his [sic – “voice”] “I want Mark Sindek sacked now” twice and walked out of the office.  I calmly responded by saying that I shall look into that and followed him out.

We walked towards the eastern end of the office where extension work is being undertaken.  Whilst there, he demanded to know why the work has stopped.  I explained that due to limited funding, work has stopped.

From there we proceeded to the western end of the office where the haus wind is located.

We went in and sat down while his supporters and the public converged around us.

The member then started introducing his electoral staff.  After that he started telling us (public servants) at the top of his voice that we must improve on our performances.  Notable comments made are; “I will start cleaning this office from the head down to the toes”, “You have been sleeping here doing very little.” “The people of Idam & Rocky Peak are missing out on basic services”, “I give you two weeks to find money and complete the office extension work” “District Administrator, I am not happy with you when you went ahead and did the ground breaking ceremony at Kilifas-Imonda Pilot Track without me which is an insult to me.”  He continued talking at a raised level and concluded by saying this; “I will ensure that an audit shall be carried out on the account and if funds are found to be misused, both the former member and the district Administrator will be sent to jail.

When he finished, I calmly responded by saying that service delivery in Vanimo Green District is a critical issue.  The district has poor road network and transportation system.  The District Administration is preparing to set a date for member to be with the staff to have him briefed on what is happening in the district.  After our brief, he shall be in a better position to make comments and decisions.  At this point in time, he is not sure of what is happening.  I then shook hands with him and left.

At about 2:00pm that same afternoon, I was delivered a copy of Hon. Namah’s letter to the Provincial Administrator to suspend me by COB Tuesday the 4th September, 2007 and appoint John Salle as Acting District Administrator.

This is the first time in my 24 years of working life as a public servant that I had to endure direct abuse of me and the public servants in front of supporters and the general public.

I do not know the reason for such a behavior from a national leader.

I am of the view that the member is confused with my responsibilities as a District Administrator holding office established by provisions of Section 73 of the Organic Law on Provincial & Local Level Government and that of his electoral staff.

As public servants, we owe him nothing and he owes us nothing as well.  We are neutral and are prepared to work with any leader of the day to deliver services.

Thank you

      (Signed)
Conrad M Tilau
District Administrator

(j)	The Provincial Administrator, Mr. Joseph Sungi, then decided, in order to keep the peace with the Leader, to appoint Mr. Tilau as Telefomin District Administrator, swapping offices with Mr. Lou Badui as of 24 September 2007.

(k)	There was not found to be any wrongdoing on the part of Mr. Tilau.  Indeed he had behaved both with commendable constraint and propriety.  He has since risen to the position of a Deputy Provincial Administrator and is now Acting Provincial Administrator.

(l)	The Leader’s conduct in all this reflects no credit upon him.  He was prepared to make charges against a career public servant for no better reason than that his pride was affronted.  He clearly did not, as Mr. Tilau perceptively noted, understand the role of public servants serving successive political masters.  However, he did not himself usurp the role of the Provincial Administrator but only made a complaint which he no doubt thought, albeit wrongly, had merit.  He seemed to believe that he was as, he had been when in the Army, a superior officer demanding obedience from a subordinate.  That does betray a serious misunderstanding of the roles of members of the public service and of the legislature but we are not able to conclude that it is of such a nature as to amount to “misconduct in office”.

69.	This charge is dismissed.

70.	The Leader concedes the remaining charges against him are true and amount to misconduct in office.  These are proper concessions (see In re Michael Somare [2011] PGLT 1).

(1)	Annual Statement to Ombudsman Commission - Period 6 August 2006 to 5 August 2007

(A)	This was provided on 14 November 2007 but omitted entirely a Statement of Assets, which the Leader said was to be provided in two weeks’ time.  It was not until 5 September 2008 that such information was provided. Even so there were a number of  significant errors and omissions in that information identified in Exhibit 37 as follows:

	“•On 5 September 2008 Mr Namah supplied the missing information which he said to provide in two weeks’ time; [Exhibit 37 at page 539-562]”

•“Through his Annual Statement, he failed to supply the following:

(a)	He gave us wrong Mobile phone number;
(b)	He failed to declare assets owned by his companies to the Commission;
(c)	He failed to declare the account at which his personal incomes transact;
(d)	He failed to declare his company GVG Limited’s income of K193,000.00;
(e)	He declared an inflated income by GVG Finance Limited’s income of K1,256,517.00 when the actual earned for the period was K962,038.50;
(f)	He failed to declare the source of this income;
(g)	He failed to declare what he has done with this income, whether invested or spent because he said that his net was only K7,768.00 and all the rest was deducted;
(h)	He declared that he receive K3 million.  K2.5 million was deducted and K0.5 million was his net.  He failed to stated what were the deductions for;
(i)	He failed to declare what he had done with the K0.5 million;
(j)	He failed to declare at which account this money was transacted;
(k)	He failed to declare account No 12107009 and declare the K7.4 million that had been transacted through this account;
(l)	He failed to declared what he has done with this K7.4 million;
(m)	He failed to declare the source of this K7.40 million;
(n)	He failed to declare the source of K924,500.00 held in account No 1000876916;
(o)	He failed to declare what he has done with this K924,500.00;
(p)	He failed to declare that he was the Director of Moma Resource Development Ltd;
(q)	He failed to declare that he was the shareholder and director of Siniwok Limited;
(r)	He mislead the Commission by saying himself and his wife owned Section 221 Lot 05, Gordons, when it is actually owned by Siniwok Limited;
(s)	He mislead the Commission by saying he bought the property for K1.3 million when actually bought for K0.5 million.”

(B)	This was a serious lapse which left unanswered matters that could have reflected adversely on the Leader’s integrity and financial probity.

(C)	A fine of K1000.00 should be recommended.

(2)	Annual Statement to Ombudsman Commission for Period 6 August 2007 to 5 August 2008

(A)	The request for a Statement was issued on 17 September 2008.  On 25 November 2008 a reminder letter was sent.  On 5 February 2009 there was still no response.  A response was still pending when the request for a Statement relating to the period 6 August 2008 to 5 August 2009 issued.

(B)	Not until 18 November 2009 was any response received.  It was from Young & Williams (Mr. G. Sheppard).  It claimed the “original had been misplaced” due to “administrative oversight in our office”.  It forwarded the Statement.

(C)	The excuse offered is not entirely plausible given the reminders.  The Leader was, at the least, egregiously careless.  To that may be added the Notice sent to the Leader on 5 February 2009 requesting any reasonable excuse for that failure.  None was forthcoming till the letter from Mr. Sheppard of 18 November 2009 (P246 Referral Book).

(D)	We recommend a fine of K750.00.

(3)	Annual Statement for Period 6 August 2008 to 5 August 2009

(A)	This Annual Statement was in fact submitted but 1 month and 2 weeks after the due date (5 November 2009), apparently with the previous year’s Statement.

(B)	The Leader acknowledges responsibility for the “administrative oversight”, though his lawyer, Mr. Sheppard, wrote that it was in “our office”, ie Young & Williams.

(C)	In all these circumstances, we recommend a fine of K250.00.

(4)	Annual Statement for Period 6 August 2009 to 5 August 2010

(A)	The usual request was sent to the Leader on 1 September 2010, received at the National Parliament on 3 September 2010.

(B)	The required Annual Statement was not received by the Ombudsman Commission until 30 August 2011.  This was 9 months and 3 days late.

(C)	It might have been thought that, given the history of late compliance, the Leader would have exercised more care in ensuring his returns were compliant.

(D)	The Tribunal recommends a fine of K750.00 for this contravention of the Leadership Code.

(5)	Annual Statement for Period 6 August 2010 to 5 August 2011

(A)	The Statement form and request dated 27 October 2011 were received at Parliament House for the Leader on 1 November 2011 (11am).

(B)	The Annual Statement was submitted on 24 April 2012.  That was 1 month, 1 week, 1 day late.  No excuse, reasonable or otherwise, has been offered.  Again, in light of past lapses, this non-compliance bespeaks habitual carelessness.

(C)	We recommend a fine of K500.00 in consequence of the Leader’s repeat offending.

(6)	Annual Statement for Period 6 August 2011 to 5 August 2012

(A)	This followed the Leader’s successful re-election as Member for Vanimo-Green River Open.  By letter dated 22 August 2012, he was requested to file his return.

(B)	It had not been furnished as at the date of the complaint concerning his conduct.

(C)	No explanation is offered.  The tribunal recommends a fine of K1000.00.

(7)	Annual Statement for Period 6 August 2012 to 5 August 2013

(A)	On 13 November 2013 a request was sent to the Leader for this Return Period.  It was received on 15 November 2013 at Parliament House.

(B)	It was submitted on 18 June 2014.  That was 3 months, 2 weeks and 2 days late.

(C)	No excuse is or has been offered for this lapse.  Given the history of non-compliance, we recommend a fine of K750.00.

(8)	Failure to lodge financial Returns to Office of Integrity of Political Parties and Candidates Commission

(A)	The Organic Law on the Integrity of Political Parties and Candidates 2000 (OLIPPAC) imposes certain obligations on political parties and Members of Parliament.  Under Section 89, it is mandatory for a winning candidate, within 3 months after the return of the election writs, to lodge financial returns.

(B)	On 4 March 2013, the Registrar of Integrity of Political Parties and Candidates Commission, Dr. Gelu, wrote to the Leader advising him that, due to his failure to file the required Election Returns, a fine of K4240 was imposed on him, payable by 15 March 2013 on pain of referral to the Ombudsman Commission.  On 24 July 2013, Dr. Gelu wrote again noting payment had not been received.  Time was extended to 2 September 2013.

(C)	Financial returns for parties are mandated by s.88 of the relevant Organic Law.  Section 89 imposes an obligation on successful candidates to provide a return.

(D)	A person who fails to file a required return “is guilty of misconduct in office under the Leadership Code”.

(E)	Filing a return which is false or defective is an offence punishable by a fine of up to K2000.00.

(F)	Dr. Gelu deposes that fines were imposed by him under s.99(4) of the OLIPPAC.  There is no such section in the OLIPPAC.  Section 89(4) however provides for a fine of K2000.00 and a “default penalty” of a fine not exceeding K20.00.  That is interpreted as K20.00 for each day of continuing default (see s.16 Interpretation Act 1975).

(G)	The total fine for which the Leader was liable was K4240.  He paid that sum on 8 August 2013.  He was directed to furnish the required return before 2 September 2013.  On that date, as foreshadowed, the Registrar referred the Leader for prosecution under the Leadership Code.  Pursuant to s.20 of the District Courts Act 1995, it was open to Dr. Gelu to lay an information in the District Court to prosecute an offence under s.89(4) of the OLIPPAC.  The legal basis for the Registrar to impose fines on defaulting persons is not clear.  It may be taken as an infringement notice which, at the option of the person in default, if paid, bypasses the need for prosecution.

(H)	In any event, the Leader is already recommended for dismissal from office.  The prosecutor concedes that a monetary penalty is appropriate for this default.

(I)	If the Leader has furnished the missing return, we consider that whilst finding the failure to be misconduct in office, no further penalty should be imposed in the light of the fine purportedly imposed by the Registrar and paid by the Leader. If the Leader has continued to default after the new demand for a return, he should be referred to the District Court for prosecution under s.89(4) of the OLIPPAC.

71.	The tribunal therefore makes the following recommendations.

Category 1

FINDING:
•	The Leader is not guilty of misconduct in office.

Category 2
FINDING:

•	The Leader is guilty of misconduct in office and should be dismissed from office.

Category 3

•	Count 1:  The Leader is guilty of misconduct in office.
A fine of K1000.00 is recommended.

•	Count 2:  The Leader is guilty of misconduct in office.
A fine of K750.00 is recommended.

•	Count 3:  The Leader is guilty of misconduct in office.
A fine of K250.00 is recommended.

•	Count 4:  The Leader is guilty of misconduct in office.
A fine of K750.00 is recommended.

•	Count 5:  The Leader is guilty of misconduct in office.
A fine of K500.00 is recommended.

•	Count 6:  The Leader is guilty of misconduct in office.
A fine of K1000.00 is recommended.

•	Count 7: The Leader is guilty of misconduct in office.
No further penalty is recommended.

CONCLUSION

72.     In accordance with s.27(6) of the Organic Law on the Duties and Responsibilities of Leadership, a copy of this decision will be forwarded to the Speaker of the Parliament for presentation to the House and to the National Executive Council.

73.      A. KALANDI, SM – Member: Upon the appointment of this Leadership Tribunal on the 28th September 2017, by the Acting Chief Justice, His Honour, Salika DCJ to enquire and to determine the allegations of misconduct in office leveled against the leader, Honourable Belden Namah, MP for Vanimo-Green Open Electorate, the Tribunal commenced sitting on the 16th October 2017.

74.     An earlier Tribunal was appointed by His Honour, Injia CJ to enquire and determine allegations of misconduct in office against the leader, but due to allegation of reasonable apprehension of bias, the Tribunal was permanently stayed by his Honour, Cannings J by an Order made 02nd September 2016 which led to the Public Prosecutor requesting the current Tribunal and which led to the appointment of this Tribunal.

75.      On the 18th October 2017, the Public Prosecutor deleted some of the allegations that were presented to the previous Tribunal and requested this Tribunal to inquire into only five (5) categories comprising of ten (10) allegations. I do not need to repeat what has been already said, but for purposes of clarity, I set out the category of allegations. 

76.      By virtue of the office he held, as MP for Vanimo-Green, he was at all material times a person to whom Division III.2 of the Constitution (Leadership Code) and the Organic Law on the Duties and Responsibilities of Leadership applied. Thus the following categories were advanced:
Category 1
Allegation 1
INTERFERENCE WITH THE ADMINISTRATIVE PROCESS – SUSPENSION OF DISTRICT ADMINISTRATOR, CONRAD TILAU
It’s alleged that on the 14th August 2017, the Leader demanded for the removal, suspension and discipline of Conrad Tilau, Vanimo Green District Administrator without lawful authority. 
It’s therefore alleged that the leader is guilty of misconduct in office under Section 27(5)(b) of the Constitution.
Category 2
Allegation 2
IMPROPER CONDUCT AND ABUSE OF POWER WHEN LEADER STORMED THE SUPREME AND NATIONAL COURT BUILDING WHEN COURT WAS IN SESSION AND DEMANDED THE IMMEDIATE RESIGNATION AND ARREST OF THE CHIEF JUSTICE 
It’s alleged that on the 24th May 2012, the leader in company of some policeman and soldiers went into Court Room Number Three (3) while Sir Salamo Injia, Chief Justice was presiding over matters, interrupted Court proceedings by shouting in a threatening manner and demanded the immediate resignation and arrest of the Chief Justice. 
It’s therefore alleged that the Leader is guilty of misconduct in office under Section 27(5) (b) of the Constitution.
Category 3
Allegations 3, 4, 5, 6 & 7
The allegations labeled as 3, 4, 5, 6 & 7 per this category are for Late or Non-Submission of Annual Statement for the Periods 06th August 2007 to 05th August 2017.
The allegations of misconduct in office per this category were pursuant to Section 4(6)(a) of the Organic Law on the Duties and Responsibilities of Leadership. 
Category 4
Allegations 8 & 9
The allegations under this category stipulated as allegations 8 & 9 are for;
Knowingly or Negligently Giving False, Misleading and Incomplete Statement in his Annual Statement to the Ombudsman Commission for the Periods August 2006 to August 2007.
The allegation of misconduct in office per this category was pursuant to Section 4(6)(b) of the Organic Law on the Duties and Responsibilities of Leadership. 
Category 5
Allegation 10
The final allegation under this category is for; 
Failure to Lodge Financial Returns to the Office of the Integrity of Political Parties and Candidates Commission as Winning Candidate for the 2012 General Elections.
This allegation of misconduct in office in failing to submit financial returns per Section 88 of the Organic Law on the Integrity of Political Parties and Candidates 2003 was per Section 27(5)(b) of the Constitution. 
After the Reference relating to the allegations of misconduct in office by the Leader were presented by the Public Prosecutor, the Leader through his Counsel admitted the allegations per Categories 3, 4 & 5 and denied the allegations per Categories 1 and 2 of the Reference. Thus, there was admission to allegations 3, 4, 5, 6, 7, 8, 9 & 10 and denial on allegations 1 & 2. Thus, this Tribunal will enquire into and determine the allegations of misconduct in office by the Leader on allegations 1 and 2.    
The suspension of the Leader was not an issue but followed by operation of law pursuant to Section 28 of Organic Law on the Duties and Responsibilities of Leadership (OLDRL).
77.      I will now deal with each Category of allegations for Categories 1 and 2, of which are allegations 1 and 2. The Public Prosecutor filed Affidavit and called in witnesses for purposes of these two allegations.

Category 1-Allegation 1

INTERFERENCE WITH THE ADMINISTRATION PROCESS - SUSPENSION OF DISTRICT ADMINISTRATOR CONRAD TILAU 
It’s alleged that on the 14th August 2007, the leader demanded for the removal, suspension and discipline of Conrad Tilau, Vanimo–Green District Administrator and directed that his staff, John Salle be appointed as Acting District Administrator without lawful authority. 
It’s therefore alleged that the Leader is guilty of misconduct in office under Section 27(5)(b) of the Constitution.
The Public Prosecutor called Mr. Conrad Tilau for purposes of this allegation and he presented sworn evidence and also tendered the affidavit evidence of Conrad Tilau which was marked as Exhibit 7. The facts that were deposed by this witness were not disputed. The evidence by the witness revealed that there was no suspension of him as the District Administrator at any time in consequence of any interference by the Leader.   
The declaration of the election victory of the Leader was made on the 25th July 2017. It was after his victory that on the 14th August 2007, issued a threat for the suspension of Conrad Tilau via his mobile phone for the reason being the District Administrator was seen with the former Vanimo-Green MP Phillip Inou.
In the public service machinery and in any other private organization, laying a complaint, suspension and investigation is a set process. This process ensures that the outcome is a result of the process itself. There is no evidence of any mobile communication between the Leader and Conrad Tilau of his  suspension and investigation, but the evidence of the letter by Conrad Tilau dated 18th August 2007 to the Leader in respond to the alleged mobile threat (Statement of Reasons pg 125) and the letter by the Leader to the Provincial Administrator dated 03rd September 2007 (Statement of Reasons pg 129) is sufficient to conclude that there was mobile communication by the Leader to Conrad Tilau for the suspension and investigation of him as the District Administrator  by reason of his involvement with the former MP. 
As I have alluded above, the Leader being a duly elected Leader who realized that Mr. Tilau was seen with the former MP, became the complainant to lodge his complaint with the relevant authority, which was the Provincial Administrator to suspend and investigate the reason behind Mr. Tilau’s association with the former MP at a Government funded project in the district of which the Leader was duly elected. 
As a duly elected Member for the Vanimo–Green District, Mr. Tilau as the District Administrator would be expected to work the Member elect and the vice versa. 
Upon acting on the letter of the Leader dated the 03rd September 2007, the Provincial Administrator by letter dated the 05th September 2007, transferred Mr. Tilau to Telefomin District. There is no proof as to whether there was any suspension and investigation, but I am of the view that there was no suspension and any investigation conducted. This was confirmed by Mr. Tilau in cross-examination that he was not suspended or investigated but was transferred to Telefomin District. 
The Provincial Administrator properly exercised restraint on the allegation of Mr. Tilau being seen with the former MP at the ground breaking ceremony of a Government funded project. The Provincial Administrator saw fit to determine the transfer to maintain normalcy in the District as there was nothing wrong in Mr. Tilau being seen at the ground breaking ceremony with the former MP, Mr. Phillip Inou, as the project was funded during the term of his office as the Member for Vanimo-Green.                 
The Leader properly lodged the complaint with the Provincial Administrator against Mr. Tilau, but the manner in which he laid the complainant was not proper as he ought to work with the District Administrator to deliver services to his people. Thus, his actions and conduct does not give any credit to him as a leader for lodging complaints which had no merit. Though, the Leader’s actions brought disrespect to himself, I am of the view that  this does not amount to a “misconduct in office” as per the allegation leveled against the Leader per Section 27(5)(b) of the Constitution.
In an Application Pursuant to Section 155(4) by John Mua Nilkare before a Tribunal appointed under the Organic Law on duties and Responsibilities of Leaders SC 536, among the allegations leveled against the Leader for alleged misconduct in office. Count 3 was for the Leader directing the Department Secretary to remit K20,000.00 to his electorate and Count 5 was for the Leader directing the Secretary of the Department of Simbu to apply remitted MTP funds to the various projects in his electorate.
The Tribunal concluded that the Leader was guilty of misconduct in office on Count 3 & Count 5 among the other charges. Thus this application was lodged and the Supreme Court ruled that, the Tribunal erred in concluding that the Leader’s direction to the Department Secretary and the Provincial Secretary did not offend Section 27 of the Constitution.    
Here, the Leader lodged a complaint with the Provincial Administrator via his letter against Mr. Tilau, but the allegation lacked merit which is a discredit for the Leader.
Thus, I concur with the finding of His Honour, Higgins J, that this charge be dismissed.         

CATEGORY 2, ALLEGATION 2

IMPROPER CONDUCT AND ABUSE OF POWER WHEN LEADER STORMED THE SUPREME COURT AND NATIONAL COURT BUILDING WHEN COURT WAS IN SESSION AND DEMANDED THE IMMEDIATE RESIGNATION AND ARREST OF THE CHIEF JUSTICE 

It’s alleged that on the 24th May 2012, the leader in company of some policemen and soldiers went into the Court Room Number Three (3) while Sir Salamo Injia, Chief Justice was presiding over matters and interrupted Court proceedings by shouting in a threatening manner and demanded for the immediate resignation and arresting of the Chief Justice.

It’s therefore alleged that the Leader is guilty of misconduct in office under Section 27(5)(b) of the Constitution.

The Public Prosecutor indicated evidence to be produced by five witnesses of which the witnesses evidence were filed by way of Affidavits. The Leader through his lawyers vigorously cross-examined the witnesses Mr. Norman Mega and Mr. Allan Dian. One of the witnesses to give evidence, Mr. Ian Augerea was not called as he was out of the country. Thus, his Affidavit was not tendered into evidence. His evidence basically stipulated what happened outside the Court Room.  

The Affidavit of Pavora Marupi filed on the 12th November 2015 was tendered as Exhibit 1 without objection. Ms. Pavora Marupi was the officer in charge of the Court Reporting Services Division of the Supreme and National Courts. Paragraphs 1, 2 and 6 of this Affidavit were deemed to be relevant thus admissible. The very crucial paragraph was 6, which contained the outlined chronology of the very statements made by the Leader as recorded as transcripts of the case that was in progress at that time. Thus, the statements made by the Leader shows that the statements were made by way of interruption when the Court was in progress when Counsel were making submissions. 

The Leader said the following as recorded;

“Chief Justice, I want your immediate resignation now. Resign now Chief Justice, your immediate resignation. You are not a credible person. Arrest him, arrest him now. You are bringing the country down. You have got to respect the people of Papua New Guinea. You are only one man, you are bringing this country down. Arrest him, go and arrest him. Arrest him, follow him. Arrest him, arrest him. Arrest him. Enough is enough. Enough is enough. Take him straight to the car. Paitim em, Arrest him, he asked for it, he will get it.”    

The statement by the Leader was directed to the policemen and the soldiers who had accompanied him to the Court Room when the Court was in session.  

The tape that recorded the event that unfolded was also played on the request of Counsel for the Leader. The recording appropriately described the statements and the attitude of the Leader at that relevant time. Thus, there was no objection to the tape.   

The Affidavit of Tongia Kekebogi filed the 09th November 2015 was tendered as Exhibit 2 with the objection of paragraph 4 which was of the reporting in the National Newspaper. Paragraphs 7-16 of this Affidavit are deemed relevant for this purpose. It states, Mr. Namah pointed at the Chief Justice and said, “Chief Justice, I want your immediate resignation” and directed the policemen to go up and arrest him. On direction, 3-4 policemen rushed toward the Chief Justice to the bench, but on noticing, the Chief Justice exited the door. The Associate to Chief Justice, Mr.Allan Dian (who is also a witness) followed and tried to shut the door inside after the Chief Justice exited, but the policemen pulled him back and went after the Chief justice.

On cross-examination by Counsel, Mr. Kekebogi agreed that the Leader himself did not approach the bench. Thus, directions were given to the policemen to arrest the Chief Justice while he remained with the other politicians who were in his company, being Mr. Francis Awesa, MP, Mr. Jamie Graham, MP, and James Marape, MP.

The Affidavit of Norman Mega filed on the 18th November 2015 was tendered as Exhibit 3 with the deletion of paragraphs 4 and 8 on objection. This witness was the Court Attendant. His Affidavit identifies seeing Mr. James Marape, MP with the others mentioned above accompanying the Leader. 

The witness, Allan Dian who was the Associate to the Chief Judge at that relevant time gave sworn oral evidence. His Affidavit sworn on the 24th October 2017 was tendered as Exhibit 5. The paragraphs of his Affidavit deemed relevant for this purpose are paragraphs 05-11, which describes what unfolded at that material time in Court Room Three (03) at Waigani.

At paragraph 5 he deposed; 

“While we were in the middle of Ms. Twivey’s case, Mr. Namah in the company of some of the members of Parliament,  i.e, Jamie Maxton Graham, Francis Awesa and 2 or 3 others with 30-40 policemen and defence force pushed hard the door of the court room no. 3 which we were in.”

At paragraph 6, he deposed what the Leader said;

“Chief Justice, you are under arrest, you are under arrest, you are only one man. Chief Justice, you are under arrest, you are under arrest, arrest him now, arrest him.” 

As a result, the policemen and soldiers rushed towards the bench for the Chief Justice, but he exited by the door leading to the chambers. When he (witness) went to the door to lock it, he was pushed off by the policemen and the soldiers resulting in him sustaining injuries.

In cross-examination, when asked as to how the door was opened, he said, 

“the door was pulled back, it was pulled open hard with a loud banging noise against the wall.” He concurred that the impression of the people accompanying him was rough.

Mr. Sheppard, for the Leader, called no evidence. Thus, there is no evidence from the Leader concerning the event that unfolded on the 24th May 2012. There is nothing wrong in calling no evidence for the Leader. It is the right of the Leader to remain silent.  The right to remain silent is a basic right guaranteed and safeguarded by the Constitution per Section 37(10). As a result, there cannot be any adverse finding against the Leader, on the basis of him remaining silent in the event there is no prima facie case established by the prosecution. 

In Albert Karo v Ombudsman Commission N1383, if there is no prima facie case established against the accused, any adverse finding against the accused for exercising his right to remain silent would amount to an error of law. Pursuant to Schedule 2.2 and 2.4 of the Constitution, this right to remain silent is also a part of the Underlying Law.  

In The State v Kais Pohien (2016) N6350, His Honour, Liosi AJ cited the case of Paulus Pawa v The State (1981) PNGLR 498, “the Court also held there that where an accused person exercises his right to remain silent, this is not and should not be treated as an admission of guilt.  However, the Court there also went on to say that failure to testify may, however tell against an accused person in that it may strengthen the State case by leaving it un-contradicted or unexplained on vital matters.”

Thus, any finding against the Leader would be centered on the case as established by the prosecution evidence.

The prosecution submitted that the evidence against the Leader is not contradicted thus his actions amount to misconduct in office. Thus, Mr. Popeu for the prosecution submitted no other penalty should be given other than dismissal from office. 

There was no evidence presented by the Leader through his Counsel, Mr. Sheppard explaining the event that unfolded on the 24th May 2012. There was no submission or argument by Mr. Sheppard disputing the evidence as was presented by the prosecution. However, he advanced two arguments which are, firstly, there was a reconciliation between the Chief Justice and the Leader for the best interest of the nation in the Melanesian norm and any penalty to dismiss the Leader would revive the initial situation. Secondly, Mr. Sheppard’s argument was centered on the undue delay in the laying of the complaint and the charging of the Leader. Where any application is to be made for a stay on the basis of the undue delay, is not a matter for this Tribunal as it lacks jurisdiction. However, in submission on this part, Counsel submitted no penalty would be imposed in the circumstances.    

Taking into consideration the arguments posed by Mr. Sheppard, I am of the view that the entering into Court Room 03 in which the Chief Justice was presiding over the case against Ms. Tiffany Twivey was an action any reasonable person would condemn. The Chief Justice is a person of very important standing in the Judiciary which is the third arm of government of the Independent State of Papua New Guinea and if there is an act against him would be through the use of the relevant provisions of the Arrest Act. There was no likelihood that the Chief Justice would evade any lawful act so as to justify the invasion of the Court Room with a large number of policemen and soldiers to arrest him without any legal document, such as a warrant of arrest. 

Mr. Sheppard did not contest any matter as per the evidence presented by the prosecution, but his arguments assumed that the Leader was already found guilty of misconduct in office. The prosecution evidence is unchallenged, there is no contradiction and the evidence pins the core of the event that unfolded critically taking consideration of the tape that recorded the event as eventuated played taken in as prosecution’s evidence without objection.    

The Constitution establishes the three arms of the government and the duties and functions that goes with them. Section 99 of the Constitution plainly sets out the Structure of the Government of the Independent State of Papua New Guinea. Thus, the respective powers and functions of the three arms of the government shall be kept separate from each other. The conduct by the Leader and associates, fellow politicians who aided and abetted him in executing the event as unfolded was a serious war on the independence of the arms of government, thus the judiciary.      

In this Tribunal, I am satisfied as per the evidence presented by the prosecution which is uncontested by the Counsel for the Leader and I reject his submission for no dismissal of the Leader. The Leader is guilty of misconduct in office as alleged on this charge.   

78.      Thus, this is the summary of findings against the Leader as per each of the categories under each allegation.

SUMMARY OF FINDINGS

Category One
Allegation 01				Dismissed

Category Two
Allegation 02				Guilty

Category Three
Allegation 03,04,05,06 & 07	Guilty (Admission)   

Category Four
Allegation 08 & 09			Guilty (Admission)

Category Five
Allegation 10				Guilty (Admission) 

JUDGEMENT ON PENALTY

79.   Having heard submissions on penalty, I concur with the recommendations proposed by the Chairman [and Ms. Tivese].

80.      It is therefore recommended to the Head of State that:

Category 1
FINDING:

•	The Leader is not guilty of misconduct in office.

Category 2
FINDING:

•	The Leader is guilty of misconduct in office and should be dismissed from office.

Category 3
•	Count 1:  The Leader is guilty of misconduct in office.
A fine of K1000.00 is recommended.
•	Count 2:  The Leader is guilty of misconduct in office.
A fine of K750.00 is recommended.
•	Count 3:  The Leader is guilty of misconduct in office.
A fine of K250.00 is recommended.
•	Count 4:  The Leader is guilty of misconduct in office.
A fine of K750.00 is recommended.
•	Count 5:  The Leader is guilty of misconduct in office.
A fine of K500.00 is recommended.
•	Count 6:  The Leader is guilty of misconduct in office.
A fine of K1000.00 is recommended.
•	Count 7: The Leader is guilty of misconduct in office.
No further penalty is recommended.
_____________________	_________________		________________	
Justice Terence J. Higgins	Ms. Patricia Tivese		Mr. Alex Kalandi
		Senior Principal Magistrate 	Senior Magistrate
___________________________________________________________
The Public Prosecutor: Lawyers assisting the Tribunal		
Young & Williams: Lawyers for the Leader: