N9276 (LT)
PAPUA NEW GUINEA
[IN THE LEADERSHIP TRIBUNAL]

LT NO. 01 OF 2021

IN THE MATTER OF A REFERENCE BY THE PUBLIC PROSECUTOR PURSUANT TO SECITON 27 (2) OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP
AND

IN THE MATTER OF HON. SOLAN MIRISIM MP, MEMBER FOR TELEFOMIN OPEN, WEST SEPIK PROVINCIAL ASSEMBLY

WAIGANI:	The Honourable Justice Gavara-Nanu – Chairman, His Worship – Mark Selefkariu – DCM & Her Worship – Josephine Kilage – SM

2021:	31st July

LEADERSHIP TRIBUNAL – Practice & Procedure – Organic Law on Duties and Responsibilities of Leadership– Constitution – Misconduct in Office – Allegation – Powers and Functions of Leadership Tribunal – Reference by the Public Prosecutor – No case – Appropriate mode of application - Relevant principles.

Cases Cited:

Andrew Kumbakor, Member for Nuku (2003) N236 
In the Matter of Grand Chief Sir Michael Thomas Somare (2011) N4224
James Eki Mopio[1981] PNGLR 416
Re Kedea Uru [1988-89] PNGLR 226; N730
Special Reference by the Ombudsman Commission; Re Constitution; s.28(5)(2017) SC1645
The State v. Lasebose Kuriday [1981] N300
The State v. Paul Kundi Rape [1976] PNGLR 96 

Counsel:

G. Sheppard, for the Leader
Mr. Kuvi, for the Referrer 

31st July, 2021

1.	BY THE TRIBUNAL:	The Hon. Solan Mirisim, MP, (Leader) through his counsel, Mr. Greg Sheppard made a ‘no case’ submission after the Public Prosecutor (Referrer) closed his case. It was argued that except for allegation 1 to which the Leader pleaded guilty and allegations 11, 12 and 13 which were withdrawn and subsequently struck out by the Tribunal, the Referrer failed to adduce credible evidence upon which the Tribunal could find the leader guilty of the remaining 18 allegations.  

2.	Mr. Sheppard placed reliance on two cases. First is The State v. Lasebose Kuriday [1981] N300. In that case, the accused was charged with attempted murder.  Second is a decision of a leadership tribunal in a case involving allegations of misconduct in Office against a leader.  In that case, the tribunal adopted the principles adopted in The State v. Lasebose Kuriday (supra) for a ‘no case’ submission. In both cases, principles applicable for a 'no case' in criminal trials were adopted.  The principles relied upon in those two cases are the oft- cited principles in the much celebrated case of The State v. Paul Kundi Rape [1976] PNGLR 96.  We are of the opinion that those principles are inapplicable in leadership cases for the basic reason that a proceeding before a leadership tribunal is not a criminal proceeding. A leadership tribunal does not have criminal jurisdiction. It is not a court of law and therefore, its proceedings are not judicial proceedings. See, s.28(5) of the Constitution. This point was reiterated by the Supreme Court in Special Reference by the Ombudsman Commission; Re Constitution; s.28(5) (2017) SC1645.  

3.	We are not deciding criminal charges, we are investigating into allegations of misconduct in Office by the Leader, for which the standard of proof is lower than the criminal standard but higher than the civil standard. See, James Eki Mopio [1981] PNGLR 416.  

4.	In a criminal trial, where a ‘no case’ submission is made, the tests are whether each element of the offence charged is supported by the evidence and whether the accused could be lawfully convicted on the evidence as it stood. Even if that was the case, the court would still have discretion to stop the case from continuing further, if it was of the view that the prosecution case would not improve, in which case the 'no case' submission would be upheld and accused discharged. 

5.	In leadership tribunal proceedings regarding allegations of misconduct in Office against a leader, the question is whether the requirements under s. 27 (1) of the Constitution have been made out against the leader. The allegations relate to the conduct of the leader in discharging his leadership duties and responsibilities. Here, the Tribunal is required to conduct an investigation into the allegations brought against the Leader and decide whether he is guilty of misconduct in Office regarding those allegations. 

6.	In our opinion, in leadership proceedings, if a leader decided to make a 'no case' submission the proper mode of making such application is by way of an application for summary dismissal either of an allegation or allegations. However, the tribunal should exercise its power to dismiss only in the clearest of cases. For example, where law is clearly misapprehended, or where facts upon which allegations are brought do not exist, thus providing the basis for a summary dismissal of the allegation or allegations. A classic case would be where an allegation against a leader fell outside the period in which he became a leader. See, Re Kedea Uru [1958-89] PNGLR 226; N730. See also, In the Matter of Grand Chief Sir Michael Somare (2011) 224. In the latter case, counsel for the leader applied for the summary dismissal of all 25 allegations against the leader on the grounds that the allegations were - "duplicitous, ambiguous, contradictory, failed to disclose an offence and overall the allegations were unfair and oppressive". In refusing the application, the tribunal said the issues raised in the application were seriously contested and would be best considered in light of all the evidence from the parties and submissions to be made by counsel. The tribunal said the leader had to be heard on the allegations made against him. See also, Andrew Kumbakor, Member for Nuku (2003) N2363.  

7.	Mr. Sheppard has also asked us to interpret certain provisions of the Organic Law in deciding whether the Leader has 'a case to answer'.  We reject that argument, our task is to conduct an investigation into the allegations of misconduct in Office brought against the Leader. The Tribunal has no power to interpret provisions of the Organic Law. See, In the Matter of Grand Chief Sir Michael Thomas Somare (supra). We have also been effectively asked by Mr. Sheppard to weigh the evidence, but we can only do that after we hear from both sides.  See, In the Matter of Grand Chief Sir Michael Thomas Somare (supra). It must be remembered that there was an initial finding by the OC that there was a prima facie case that the leader was guilty of misconduct in Office. That finding formed the basis of this Referral. Thus, it is an integral part of the Tribunal’s investigations into the allegations brought against the Leader to also consider whether that finding by the OC was proper. The Tribunal cannot properly and fully discharge these investigatory functions without hearing the Leader.

8.	For these reasons, the application is refused. We call upon the Leader to answer to the remaining 18 allegations.

Orders accordingly.
__________________________________________________________________
Public Prosecutor: Lawyers for the Referrer
Young & Williams Lawyers: Lawyers for the Leader