Papua New Guinea Law Reports - 1988-89
[1988-89] PNGLR 516
N816
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
KATHY RAMOI
Waigani
Miriung AJ
6-7 December 1989
12 December 1989
PRACTICE AND PROCEDURE - Service - Summons to attend Ombudsman Commission - No notice prescribed - Three days notice applicable - Discretion to abridge if purpose not defeated - Organic Law on the Duties and Responsibilities of Leadership (Ch No 1), ss 21(3), 31 - District Courts Act (Ch No 40), s 47(1) - National Court Rules, O 4, r 44.
CRIMINAL LAW - Practice and procedure - Service - Summons to attend Ombudsman Commission - No notice prescribed - Three days notice applicable - Discretion to abridge if purpose not defeated - Organic Law on the Duties and Responsibilities of Leadership (Ch No 1), ss 21(3), 31 - District Courts Act (Ch No 40), s 47(1) - National Court Rules, O 4, r 44.
CRIMINAL LAW - Particular offences - Failure by person summoned to attend Ombudsman Commission - Failure to attend “without reasonable excuse” - Onus of proof on person summoned - Balance of probabilities - Sufficiency of notice - Organic Law on the Duties and Responsibilities of Leadership (Ch No 1), ss 21(3), 31.
On a charge of failing, without reasonable excuse, to attend before the Ombudsman Commission, in response to a summons issued pursuant to s 21(3) of the Organic Law on the Duties and Responsibilities of Leadership contrary to s 31,
Held
(1)      In the absence of any provision in the relevant Organic Laws as to the length of notice for such a summons, the requirement of three days notice in s 49(1) of the District Courts Act (Ch No 40) and in O 4, r 44, of the National Court Rules, should be applied but may be abridged insofar as it does not defeat the true purpose of the requirement, which is that the person summoned should not be affected adversely by reason only of his not having been given sufficient time in which to comply.
(2)      The onus is on the person summoned of proving, on the balance of probabilities, that he has reasonable excuse for not attending.
(3)      In circumstances where the person summoned had been given 26 hours notice, made an ineffectual attempt to notify the Commission of her absence through her lawyers and had opportunity to attend, contact the Commission or seek another time for appearing, the charge had been proved.
Trial
This was the hearing of a charge of failing, without reasonable excuse, to attend before the Ombudsman Commission in response to a summons issued under s 21(3) of the Organic Law on the Duties and Responsibilities of Leadership.
Counsel
C Manek, for the State.
K V Kapa, for the accused.
Cur adv vult
12 December 1989
MIRIUNG AJ: This is a trial of the accused Kathy Asiri Ramoi who had pleaded not guilty of a charge laid against her under s 31 of the Organic Law on the Duties and Responsibilities of Leadership (Ch No 1).
CHARGE
The accused, Kathy Asiri Ramoi, is the spouse of Mr Gabriel Ramoi, the Honourable Member for Aitape Lumi (Open Electorate) in the National Parliament and former Minister for Media and Telecommunication. On Friday, 13 January 1989, the Ombudsman Commission, by instrument in writing under s 21(3) of the Organic Law on the Duties and Responsibilities of Leadership, summoned the accused to appear in person before it, at its offices situated on the first floor of the building known as “Garden City” in Angau Drive, Section 18, Allotment 4, Boroko, on Tuesday, 17 January 1989, at 9 am, to give evidence in a matter relating to:
“Alleged or suspected cases of misconduct in office under the Leadership Code and the Organic Law on the Duties and Responsibilities of Leadership.”
The accused has been charged under the Organic Law on the Duties and. Responsibilities of Leadership with the offence of having failed without reasonable excuse to attend as required by that summons. On 2 March 1989, the Ombudsman Commissioner under s 36(b) of that Organic Law gave his consent in writing to the “Public Prosecutor” to prosecute the accused for the offence under s 31 of the Organic Law.
THE PLEA AND THE DEFENCE
The accused pleaded not guilty and raised the defence that she had a reasonable excuse and in the alternative that even if she had no reasonable excuse the summons was defective in that she was given insufficient time, as the length of time between the time when she was served with the summons (about 7 am on Monday, 16 January) and the time she was required to attend before the Commission (9 am on Tuesday, 17 January 1989) fell far too short of, say, the 72 hours minimum lead time prescribed under s 47(1) of the Districts Courts Act (Ch No 40).
THE CONDUCT OF TRIAL
Defence counsel at first appeared to be conducting the defence on the basis that the service of the summons on the accused was defective in that it was not given to the accused in person but left at the residence of Mr and Mrs Ramoi situated at Lot 19, Section 140, Helai Avenue, Tokarara.
The two State witnesses, both officers in the employ of the Ombudsman Commission, Mr Ninchib Tetang and Mr Somanathapillai Somanathan, both senior accountants, testified that on Monday, 16 January 1989, they were driven to Lot 19, Section 140, Helai Avenue, Tokarara, by a Mr Subendranathan, their Division Head. He stopped the car about 16 metres from the house at Lot 19 and Messrs Tetang and Somanathan then walked to the gate which was very close to the base of the steps to the house. (Somanathan’s testimony; Tetang’s testimony was that he handed copy of the summons to the accused at the base of the steps.) It was about 7 am.
The first person they spoke to was an elderly woman who was advised by them that they were from the Ombudsman Commission and were there to speak to Mrs Ramoi. Tetang said the elderly woman then sent a child of about five or six years of age into the inner area of the house and then the accused appeared and descended to the base of the steps. Somanathan said he did not see the child, only the elderly woman. The officers identified themselves to the accused woman. The copy of the summons was then given to the accused by Tetang who also showed to her the original and told her that she should attend at the Commission Offices at 9 am the next day and she told him that she would do that. Tetang had deposed the main particulars of service in his affidavit made on 17 January 1989 which is endorsed on the original summons.
The accused gave evidence and said she was shown a copy of the summons by her husband in the bedroom on the morning of 16 January 1989. Mr Ramoi also gave sworn evidence and said he was woken up by officers of the Ombudsman Commission on the morning of 16 January 1989 and he received a copy of the summons from Mr Tetang whom he recognised and who was with three other officers when he handed him the copy. Mr Ramoi then gave the copy to his wife who was in the bedroom. When cross-examined on the possibility that he was not at his residence on 16 January 1989 but was probably in Japan, Mr Ramoi said he was definitely at home that morning. He left Papua New Guinea for Japan on the Air Niugini flight which left Port Moresby about 3.30 pm on 18 January 1989. The State has tendered a copy of a computer print-out which is the list of names of passengers who travelled from Port Moresby to Japan on Air Niugini Flight No PX092 on 18 January 1989, as well as names of passengers who were booked to travel on that flight but did not do so, and Mr Ramoi’s name does not appear on either list.
The State also tendered a copy of a print-out of Air Niugini Flight No PX0010 of 9 January 1989 in which Mr Ramoi’s name appears as travelling on that date to Japan and returning from Japan on Air Niugini Flight No PX0093J on 21 January. This evidence casts severe doubt on the account of the accused and her husband’s evidence as to the circumstances of the service of the summons. I have seen the accused and her husband in the witness box and I was not impressed that they were witnesses of truth in this regard. I find that the copy of the summons was given to Kathy Asiri Ramoi by Mr Tetang in the presence of Mr Somanathapillai Somanathan at the foot of the steps of the house at Lot 19, Section 140, Helai Avenue, Tokarara, about 7 am on 16 January 1989.
THE QUESTION OF WHETHER THE TIME GIVEN TO THE SUMMONS WAS SUFFICIENT
The summons was issued and signed by the Ombudsman Commissioner on Friday, 13 January 1989. It was served on the accused about 7 am on Monday, 16 January 1989. It required the accused to attend before the Commission at 9 am on Tuesday, 17 January 1989. The time started to run from the time of service of the summons and not from the date of the issue of the summons.
The accused was thus given 26 hours notice of the fact that she was to attend before the Commission at 9 am on Tuesday, 17 January 1989.
Section 47(1) of the District Courts Act (Ch No 40) requires summonses which require persons to appear before the District Court to be served at least 72 hours before the time appointed in any such summons for hearing. Now these are summonses to persons against whom complaints are filed by other persons for civil matters as well as summonses to persons against whom information has been laid for summary offences, say, under the Motor Traffic Act (Ch No 243) by police. The period of time prescribed by s 47(1) of the District Courts Act is also the same as that required under O 4, r 44, of the National Court Rules to give three clear days notice of any notice of motion in civil matters before that Court.
In general, and in the absence of express provisions in the relevant Organic Laws, that is, the Organic Law on the Ombudsman Commission and the Organic Law on the Duties and Responsibilities of Leadership, or in any regulations or rules made under their provisions, I think the three clear days requirement may be applied in respect of the instruments in writing, summoning persons under s 21(3) of the Organic Law on the Duties and Responsibilities of Leadership.
On this view, the accused was not given sufficient time. The instrument was prepared, it would appear, with the three clear days notice in mind. The practical problem arose when the date of issue was chosen to be Friday, 13 January 1989 or when the appointed time for appearance was made 17 January, instead of 19 January or some later date: Saturdays and Sundays are not be computed as part of the three clear days under the rule. But in my view, the important consideration is not the letter of this rule but the purpose, which is that the person summoned be given enough time to answer the summons and that person’s rights and interests must not be adversely affected by reason of the abridgement of the rule requiring three clear days notice.
THE OFFENCE
The accused has been charged with the offence, the creature of s 31 of the Organic Law on the Duties and Responsibilities of Leadership:
“31.    Failure to Attend or Produce Documents.
A person who, having been summoned to attend the Ombudsman Commission, ... fails without reasonable excuse, the burden of proof of which lies on him, to attend the Commission, ... is guilty of an offence.
Penalty: K500.00 or imprisonment for three months.”
The State has established that the accused was effectively and personally served with the summons and that she failed to attend before the Ombudsman Commission at 9 am on 17 January 1989.
Now, notwithstanding the technicality that the time allowed the accused to make her appearance before the Commission was much shorter than what could be the usual period of three clear days, can the accused be said, on the evidence before me, to have had reasonable excuse for not doing so? The burden is on the accused to prove on the balance of probabilities that she had such an excuse.
The accused said when she got the copy of the summons she went to her office and phoned her lawyer, Mr Sasu, and told him of the summons and that she would not be available on 17 January 1989 as she had made a prior arrangement to go to Mekeo on 16 January 1989 to survey a piece of customary land. Mr Sasu advised the accused to write to the Ombudsman Commission and inform the Commission of her position and ask them for another date. The accused said she then wrote a hand-written letter addressed to the Chief Ombudsman, Mr Maino Aoae, put it in an envelope and gave it to her business associate, Mr Ben Sarwon, and instructed him to deliver it. The contents of that letter were that the accused would not be available on 17 January 1989 and a request for an alternative date. Mr Sarwon gave evidence and said he did not deliver the letter, as the company vehicle had broken down the previous day and was not operative on 16, 17 and 18 January 1989. He made no other attempt to deliver the letter nor did he tell the accused of this fact. He made no telephone call either to the accused or to the Commission. The accused herself relied upon Mr Sarwon so she took no action to contact the Commission.
The accused, in fact, did not go to Mekeo until Wednesday, 18 January 1989. On 16 and 17 January, she had time to call in at the Commission offices but she chose not to do so. There is evidence that during the relevant time the telephones in her residence and at her office were in good working order and at both premises a telephone directory was available. If the accused genuinely tried to alert the Commission of her predicament, she could easily have made use of the telephone to inform them of that and request an alternative date. The accused, in fact, did not do this. The real question is, was the fact that she made a prior arrangement to go to Mekeo a reasonable excuse for her not to attend on 17 January at 9 am as required by the summons? I think it was, but in fact, she was in Port Moresby on 16 and 17 January.
The impression the accused gave is that she wrote a hand-written letter in a hurry as she was supposed to leave for Mekeo that morning but by about 11.30 am she knew that the trip to Mekeo had been postponed.
I find that the accused did write a hand-written letter in a hurry as advised by her lawyer and gave it to Mr Sarwon who failed to deliver it. On the evidence that after 11.30 am, the accused’s trip to Mekeo was no longer as urgent as it was when she wrote the letter, I find the accused has not shown that she had reasonable excuse.
The question now is, whether, even if she had no reasonable excuse, nevertheless she should not be convicted of the offence because the summons gave insufficient time. I think that the rule requiring three clear days notice should not be allowed to defeat its true purpose which is that the person summoned must not be adversely affected by reason only of his not having been given sufficient time. I think that this rule should be applied flexibly in respect of the summonses issued and served under the relevant Organic Law, as dictated by the facts and circumstances of each case. In this case, if the accused had taken time on 17 January 1989 to appear before the Commission, or even on any date after that, I do not think the effect of that would have been adverse to her in any way, as she would have asked for another date, or it could have transpired that she had not the evidence that the Commission suspected she had. For these reasons, I find the accused has filed to prove that she had reasonable excuse and so I convict her as she has been charged.
IMPOSITION OF PENALTY
The accused was summonsed as a spouse of a National Leader to give evidence as specified in the summons. She was not accused or even suspected of misconduct in office under the Leadership Code and the Organic Law on the Duties and Responsibilities of Leadership. She was only required to give evidence.
The accused was within very easy reach of the Ombudsman Commission’s offices which she could have reached by walking, by car or by telephone. She used none of these means, apart from writing in haste a hand-written letter addressed to the Chief Ombudsman of the Independent State of Papua New Guinea, a constitutional officer-holder. She never bothered to check either with Mr Sarwon, or better still, with the Commission, to see if the letter had been delivered and whether the Commissioner had received it. This indicates that the accused did not care whether it was important that she answer the summons. Because the accused is not a leader herself, but a spouse of one, I do not impose on her the maximum penalty for the offence. I do not think it is appropriate in the nature of the offence that I should take in mitigation the fact that the accused has no prior record. I impose a fine of K400.
She has requested that the bail of K150 be part of the K400 fine. It is ordered that the balance of K250 be paid by her at 9 am on Friday, 15 December 1989 to the Court Registry at the Supreme Courthouse, Waigani.
Conviction and fine of K400
Lawyer for the State: Public Prosecutor.
Lawyers for the accused: Vuatha Kei Kapa & Associates.