PNG Law Reports 1995
[1995] PNGLR 411
U4
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
EDWARD RAMU DIRO
V
THE HONOURABLE MR JUSTICE ARNOLD AMET; ROBERT MELLOR; AND SILAS SAMUEL
Waigani
Hinchliffe J
21-23 August 1991
26 August 1991
ADMINISTRATIVE LAW - Judicial review - Leadership Tribunal - Reasonable suspicion of bias.
WORDS AND PHRASES - “Reasonable suspicion” of bias.
Facts
The plaintiff was being prosecuted under the Organic Law on the Duties and Responsibilities of Leadership for alleged misconduct in office. In the process of the trial, his counsel applied to the Leadership Tribunal for the chairman to disqualify himself from sitting because of his likelihood of bias against the plaintiff. After considering the affidavit evidence and hearing submissions from the lawyers, the Tribunal ruled that the application should be dismissed. An application to the National Court for leave to apply for judicial review of that ruling was granted and the review heard.
Held
1.       In considering whether there is a real likelihood of bias, the Court does not look at the mind of whoever it may be who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would or did, in fact, favour one side at the expense of the other. The Court looks at the impression which would be given to other people.
2.       If a fair-minded person sitting in the court with knowledge of the facts would have a “reasonable suspicion” that a fair trial would not be possible, then the Court ought to accede to the request.
3.       The Tribunal, by its reaction, created a “reasonable suspicion” that a fair trial is not possible. The defendants are prohibited from further participation in the hearing. A new Tribunal must be appointed to start anew.
Cases Cited
Agai v Yamane [1987] PNGLR 124.
Boateng v The State [1990] PNGLR 342.
Kavali v Hoihoi [1984] PNGLR 182.
Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577; [1968] 3 WLR 694; [1968] 3 All ER 304.
R v Mulvihill [1990] 1 All ER 436; [1990] 1 WLR 438; 90 Cr App R 372.
R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256; [1923] All ER 233; 93 LJKB 129.
Counsel
L Henao, for the plaintiff.
F Damem, as amicus curiae.
26 August 1991
HINCHLIFFE J: The three defendants constitute a Leadership Tribunal (the Tribunal) established under s 27(7) of the Organic Law on the Duties and Responsibilities of Leadership (OLDRL). The plaintiff is being prosecuted under the said Organic Law for alleged misconduct in office, and the Tribunal is to hear the matter. At the end of last month, counsel for the plaintiff made an application to the Tribunal that the chairman, who is the first defendant in this hearing, should disqualify himself from sitting further. After hearing submissions from both the lawyers appearing before it, the Tribunal on 6 August ruled that the application be dismissed and that the Tribunal, as constituted, would continue.
On 19 August, an application for leave to apply for judicial review of the said ruling was granted, and the review commenced on 21 August.
The relief sought by the plaintiff is as follows:
“(a)    An order in the nature of certiorari to remove into the National Court and quash a decision of the first, second and third defendants, constituting a Leadership Tribunal established under s 27(7) of the Organic Law on the Duties and Responsibilities of Leadership refusing the plaintiff’s application that the Chairman of the said Tribunal, the first defendant, should disqualify himself from further participation in the Tribunal proceedings.
(b)      Additionally or alternatively an order in the nature of prohibition prohibiting the firstnamed defendant, or alternatively each of the said defendants from participating in the said Leadership Tribunal hearing.
(c)      Further or alternatively an injunction restraining the first defendant, or alternatively each of the defendants, from having any further involvement in the said Leadership Tribunal hearing.
(d)      Such further or other relief as to the Court seems fit.
3.       The grounds upon which the said relief is sought are as follows:
(a)      A fair-minded person would have reasonable apprehension that the plaintiff might not have a fair hearing before the first defendant contrary to the rules of natural justice by reason of the matters contained in the material placed before the Tribunal on the application to the said Chairman to disqualify himself.
(b)      Further, a fair-minded person would have a reasonable suspicion that the plaintiff might not obtain a fair hearing before the first defendant, or alternatively before any of the defendants, by virtue of the findings and comments contained in the reasons of the said Leadership Tribunal in refusing the plaintiff’s application that the first defendant disqualify himself.
(c)      Further, a fair-minded person would have a reasonable suspicion that the plaintiff might not obtain a fair hearing before the first defendant, or alternatively before any of the defendants, by virtue of the comments and views expressed by the first defendant contained in the transcript of proceedings of the Leadership Tribunal hearing.
(d)      (which was added on 21 August 1991) A fair-minded person would have a reasonable suspicion that the plaintiff may not obtain a fair hearing before the defendants by virtue of the Public Prosecutor indicating clearly his intention to intervene in this application and appear as Counsel for the defendants and/or appear as a person having an interest in this application.”
The plaintiff’s application to the Tribunal arose when he received some information, as did his secretary, from one Leela Barnett, from Perth, Western Australia. Leela Barnett is the estranged wife of Thomas Barnett, who is a former Judge of the Supreme and National Courts of Papua New Guinea. He is now a senior member of the Administrative Appeals Tribunal, residing in Perth. Whilst a judge in Papua New Guinea, Justice Barnett was, for part of the time, the commissioner presiding over the Commission of Inquiry into Aspects of the Papua New Guinea Timber Industry. I am told that some 40 to 50 of the 76 charges that the plaintiff is facing before the Tribunal arise out of Justice Barnett’s findings in the said inquiry.
The plaintiff, in his affidavit of 30 July 1991, gave his account of the telephone conversations he had with Mrs Barnett. I set it out in full:
“On 30 July 1991, [illegible data] Edward Ramu Diro of PO Box 322, Port Moresby say on oath:
1.       On 24 July 1991, when I walked into my office at the National Parliament House, my Secretary Elma Kila told me that Mrs Leela Barnett was on the line from Perth, Western Australia and wanted to speak to me.
2.       The call was put through, however, as the reception was not all very clear we did not speak very long. She briefly told me that she had been for quite some time trying to contact me. I told her that I would call her back later.
3.       As I had been extremely busy preparing my case for the Leadership Tribunal hearing, set for July 31 I did not call back until the afternoon of the 29 July 1991. During the conversation, among other things, she told me the following or words to the effect:
‘that both her and her husband Barnett, (the former judge of the Supreme Court of Papua New Guinea and Commissioner of the Forest Inquiry) were living separately and apart and were fighting a legal battle over the custody of their adopted 6 years old daughter, whose natural parents are Mrs Barnett’s sister and her sister’s husband;
that whilst they were still in Papua New Guinea and during the Forest Inquiry when they used to have arguments on technical matters of the Forest Inquiry, Barnett was always telling her that he wanted to “pin” me (Diro). She would say “why, you can’t do that. That’s not the way to do it.” She told we he was so determined to “kill” me. “He slept with it and woke up with it and I know nobody else knew, that the only way to kill you was through the media.” That Barnett and Judge Amet are close and Amet, J informed him of my case. In January this year, when she was in Port Moresby, although Barnett knew who she was staying with and the contact number of the people she was staying with, he contacted Judge Amet to find her and tell her that her time in PNG has expired and she should return to Australia.
4.       During the Forest Inquiry I used to notice a pattern where the hearing venue would be paced by journalists at times and at other times there would be hardly any journalists. I used to tell from this pattern that I was going to have a hard time in the hearing on the days when there were a lot of journalists, and not so hard on the others and I felt somebody in the Commission was informing the media what was going to happen to me on that day. This appears to fall in line with what Mrs Barnett is saying.
5.       Mrs Barnett told me she wanted to fax me some documents she filed in the Family Court in Perth, and for me to see if they were of any relevance to me, but had no money to pay for photocopying and fax expenses. I offered to pay for those expenses. I then instructed my secretary Ms Elma Kila to arrange to transmit the funds. Ms Kila later informed me of her telephone discussions with Mrs Barnett on 30 July 1991, which she had deposed to in an Affidavit.
6.       On 30 July 1991, I instructed my Secretary, Ms Elma Kila to contact Mrs Barnett and obtain her bank account and to organise and transmit some funds to that account.
7.       On the evening of my discussions with Mrs Barnett I informed my Counsel about the conversation and following giving due consideration, I instructed my Counsel to bring the matter to the attention of the Chief Justice and to Justice Amet and the Prosecution. I also instructed him to request that Judge Amet should not take further proceedings in the Tribunal hearing as I did not feel comfortable with all due respect about him taking part in the proceedings in the light of the alleged association with Barnett.
Prior to me knowing these allegations. I was comfortable with Justice Amet taking part, and I had no cause to feel otherwise.
8.       I am mindful that what Mrs Barnett said were allegations, and still respect Justice Amet highly like other judges of this Honourable Court. However, in my interest and in the interest that justice is not only done but seen to be done, I instructed my counsel to bring the matters to the attention of the Chief Justice, Justice Amet and the prosecutors and to make the request for Judge Amet not to participate further in the Tribunal hearing.
9.       I regret that this evidence has come to my attention and have decided to take this course of action as I have been anxious to have the allegation of misconduct against me dealt with. I have suffered long enough since the Forest Inquiry days from adverse publicity. I have worked very hard in preparing my case for the hearing before this Tribunal on 31 July 1991. I still like the charges against me dealt with, but with respect, without Justice Amet participating.
10.     I do not accuse His Honour of any impropriety and I still respect him like other members of the judiciary.
11.     Finally I did not cause Mrs Barnett to make contact with me. She did it on her own accord.”
The plaintiff’s secretary, Elma Kila, also swore an affidavit on 30 July 1991, relating to telephone conversations that she had had with Mrs Barnett.
Again, Mrs Barnett referred to her estranged husband and told Ms Kila about the custody battle over “children” that she was having with Mr Barnett and that he had stated in a Perth Court that “Papua New Guinea was a rotten country and the people still cannibals”. In a later telephone conversation, Mrs Barnett stated that Mr Barnett “was lobbying PNG students over there and telling them about Mr Diro’s case and saying that Diro should be prosecuted”. Ms Kila continued:
“I then asked if Barnett was close to Judge Amet. She said they were quite close. In fact, Barnett joined up with Judge Amet and his wife and began attending the CLC Church at Tokarara. She said she was asked to do the same, but she refused, being an Anglican. Judge Barnett used to give about K200 per week to the church. Mrs Barnett said he was doing that to make himself clean after what he did with the Forest Inquiry.
She also said Barnett used to go to Judge Amet whenever he and she (Mrs Barnett) had marital problems, or would get Judge Amet to look for her whenever she left the house.
She also said Judge Amet was the person Barnett would get in touch with for information. I asked if he still does that now, and she said, yes, and I quote, ‘Amet passes on information to Barnett on what happens to Mr Diro’s case’.”
On that material, the said application was made to the Tribunal. Subsequently Mr Barnett answered, in affidavit form, the affidavits of the plaintiff and Ms Kila. His affidavit reads as follows:
“I, Thomas Edwin Barnett of 22 Holmes Street, Shelley in the State of Western Australia, Senior Member of the Administrative Appeals Tribunal, make oath and say as follows:
1.       I am a former judge of the National and Supreme Courts of Papua New Guinea and was the Commissioner presiding over the Commission of Inquiry into Aspects of the Papua New Guinea Timber Industry in the years 1987 to 1989.
2.       I have received from the Public Prosecutor of Papua New Guinea facsimile copies of affidavits sworn by Edward Ramu Diro and Elma Kila on 31 July 1991 which I am informed have been tendered before a Leadership Tribunal in Port Moresby presided over by His Honour Mr Justice Amet. The said affidavit by Edward Ramu Diro is annexed to this my affidavit marked with the letter “A” and the said affidavit by Elma Kila is similarly annexed marked with the letter “B”.
3.       With regard to the affidavit by Edward Ramu Diro I make the following comments:
(a)      Under the provisions of the Australian Family Law Act and in particular section 121 it is an indictable offence for a person to publish any comments relating to proceedings pending in the Family Court.
(b)      With regard to paragraph 3 I say that I first met Mr Justice Amet as a colleague on my appointment as a judge in August 1984 and formed a friendship with him as a professional colleague. At times there were friendly social relationships between our two families. The last communication of any sort between myself and Mr Justice Amet was towards the end of January 1991 when I telephoned to seek his assistance in locating my wife and family who were overdue to return to Australia. He returned my telephone call about one day later to inform me that he had managed to locate them. I did not discuss with him the question of Mr Diro appearing before a Leadership Tribunal during those two telephone calls or on any other occasion. I deny ever having arguments with my wife Leela on technical or any other matters regarding the Forest Inquiry or that I ever indicated to her or felt any desire or intention to harm Mr Diro through the media.
(c)      With regard to paragraph 4 the hearings of the Commission were open to the public and regularly advertised in the press. The names of witnesses to be called at public hearings were made known to all inquirers from the press or general public. I deny the imputation that it was my practice to personally advise journalists what would happen next day.
(d)      With regard to paragraph 5 I repeat that it is a criminal offence to publish details of proceedings pending before the Family Court in Australia and I wish to make no further comment.
4.       With regard to the affidavit of Elma Kila I make the following comments:
(a)      With regard to paragraph 3 I repeat my comments that it is a criminal offence to publish details of proceedings pending in the Family Court.
(b)      With regard to paragraph 6 I deny that I have ever “lobbied” Papua New Guinea students regarding the prosecution of Mr Diro. I admit that for a period I used to attend services at the CRC Church at Tokarara which was also attended by the Honourable Mr Justice Amet. I used on occasions to give small donations of about ten kina to the church but I deny that this was in any way related to my conduct of the Forest Inquiry. I deny that Mr Justice Amet has ever passed on information to me ‘on what happens to Mr Diro’s case, or that I have ever sought information from him regarding proceedings or possible proceedings against Mr Diro.”
Subsequently, all the material came before the Tribunal and, in so doing, became quite public and was referred to in submissions to the Tribunal. There was nothing private about it, it was there for all to hear and to read.
Mr Henao, for Mr Diro, made it quite clear to the Tribunal that it was not suggested that the chairman was biased, but it was submitted that, under the circumstances, a fair-minded person might have a reasonable suspicion of bias on the part of the chairman. I emphasize that point, that the chairman was not being accused of actual bias. But the law is quite clear that not only must justice be done but it must be seen to be done. In R v Sussex Justices; ex parte Mc Carthy [1924] 1 KB 256 at 259, Lord Hewart CJ said:
“... A long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.... Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”
As recently as last year our own Supreme Court said in Boateng v The State [1990] PNGLR 342 at 346:
“We reiterate the point that what we are concerned with here is the upholding of the principles that not only must justice be done but it must be seen to be done.”
The appropriate test to be applied was argued before me, but it does not appear to have been argued before the Tribunal. One line of cases, particularly in England, has decided that there must be a “real likelihood” of bias, whereas the other line, particularly in Australia, has decided that there must only be a “reasonable suspicion” of bias. It was submitted by the lawyers that the proper test for Papua New Guinea is undecided and is still not clear. Mr Henao cited the case of Kavali v Hoihoi [1984] PNGLR 182, where Bredmeyer J said in the National Court, at p 188 of the said report:
“It is not necessary for me in this case to decide which test is appropriate for Papua New Guinea. In many cases the two tests will produce the same result. I have heard little argument on the point... I propose to apply both tests to the facts.”
His Honour, in another case, Agai v Yamane [1987] PNGLR 124 followed Kavali v Hoihoi (supra). But I disagree with both of the lawyers, in that I am of the view that the question has been answered in Boateng v The State (supra). In that case, Kidu CJ, Amet and Hinchliffe JJ said, at p 346:
“What was said in R v Liverpool City Justices; Ex parte Topping [1983] 1 WLR 119 at 123 ... is pertinent to this case:
“Would a ‘reasonable and fair-minded person sitting in a court and’ knowing all the relevant facts have a ‘reasonable suspicion that a fair trial for’ the appellant ‘was not possible’?”
Although the Supreme Court did not discuss the two tests and specifically state which test (if either) was appropriate for Papua New Guinea, it is clear that it applied the “reasonable suspicion” test, and I am of the view that that is the test that we should now apply in Papua New Guinea. Indeed, in the fairly recent case of R v Mulvihill [1990] 1 All ER 436, the English Court of Appeal applied the “reasonable suspicion” test. Therefore, it seems that nowadays England, Australia, and Papua New Guinea, at least, are in agreement on the appropriate test to be applied.
In Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577, even though the Court of Appeal was applying the “real likelihood” test. I am of the view that what Lord Denning said at pp 598 and 599 is relevant and important when deciding this case. He said:
“So far as bias is concerned, it was acknowledged that there was no actual bias on the part of Mr Lannon, and no want of good faith. But it was said that there was, albeit unconscious, a real likelihood of bias.”
This is a matter on which the law is not altogether clear, but I start with the oft-repeated saying of Lord Hewart, noted above:
“... it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would or did, in fact, favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.
Therefore, I must apply the situation here in relation to the law. I must ask myself the question: Would a reasonable and fair-minded person sitting at the Tribunal and knowing all the relevant facts have a reasonable suspicion that a fair hearing for Mr Diro was not possible before the first defendant?
It must be remembered that the affidavits of Mr Diro and Ms Kila were tendered by counsel and then considered by the Tribunal. Not only do I think that that was an error on the Tribunal’s part, but I am of the view that it was also an error on the part of the plaintiff in tendering them in that form. I propose to mention this matter more fully later in my judgment. All I will say now is that I believe that an affidavit should have been sworn by Mrs Barnett before the matter was raised with the Tribunal. At the least, before it became public.
Therefore, before it, the Tribunal had information provided by Mrs Barnett through Mr Diro and Ms Kila. That information was very damaging to the chairman, as you will soon see, in that it indicated that during the said inquiry Mr Barnett was out to “pin” Mr Diro. One gets the impression from what Mrs Barnett said that Mr Barnett was obsessed with destroying Mr Diro and that, in a nutshell, he had lost all sense of objectivity. If that was correct, then probably one would agree that Mr Barnett acted unfairly. One may ask, well how does the chairman of the Leadership Tribunal become involved in all of this? Simply because Mrs Barnett had made some extremely serious allegations relating to Justice Amet, that he has been informing Mr Barnett of the Diro case before and after he was appointed to the Tribunal. That, of course, is denied by both Mr Barnett and Justice Amet.
Mrs Barnett has left the impression that Mr Barnett is still very interested in the outcome of the prosecutions relating to Mr Diro and has even gone to the extent of keeping in touch with the chairman of the Tribunal hearing the prosecutions. Her allegations are not one sided in the sense that she has accused Justice Amet of also contacting Mr Barnett with information of the progress of the case. She makes this look possible by alleging that Justice Amet and Mr Barnett are close friends. That is not denied by Justice Amet.
In tape 4 of the transcript at pp 6 and 7, it went as follows (parts of the tape have been transcribed poorly, but I propose to read the transcript exactly as it has been typed out):
“Amet J: Well what do you propose to make of this communication with me in January and I suggested you contact Mrs Napoleon Liosi about this communication. What do you propose to make of that? Well prior to my appointment as Chairman of this Tribunal.
Mr Henao: Yes, Your Honour, it goes to show that if Barnett needed any help of any sort you would be the person that will come to his mind first, the first instance as a result of your past relationship or alleged past relationship.
Amet J: Well it needn’t be alleged, it is stated as a matter of fact, so what?
Mr Henao: Yes, as a result of that, it goes on to show that the relationship was not an ordinary colleague relationship, more than that.
Amet J: We were friends, use the word.
Mr Henao: Your Honour, “friends” I would say would be ordinary person to person relationship but is more intimate than mere friendship.
Amet J: What word would you use to describe that if ....
Mr Henao: Intimate, very intimate, very very intimate.
Amet J: Yes, alright ... with words. Yes.”
Then, on p 8, His Honour said:
“Alright, well let’s accept the use of the word we’re intimate, very close friends, intimate, to the point going to the same church, helping one another in marital difficulties to the point that when necessary I might have been asked to go and locate Mrs Barnett and vice versa in the course of that marital .... What is the connection that you brought it out?
Mr Henao: Well, we have the connection is that on one hand we have Barnett who has been described as a person who wanted to kill my client through the media in the course of the inquiry, forest inquiry. Clearly that means that he was looking at the case not from an objective point - it was not objective he wanted to get my client. That the person who has been described to us on one hand. On the other hand we have a Chairman of the Tribunal who is going to hear the charges of misconduct of which quite a number of them, most of them arose out of the inquiry which Barnett the person that has been described and make certain findings of and was involved with and say on the other hand we have the Chairman of the Tribunal who has been described as a very close, very intimate friend of ... Barnett. The point is that here I have a client who is before the Chairman of the Tribunal, that has very close connection with Barnett. The findings of Barnett have been publicised widely in and out of the country and the interest of my client ... with the officers of this tribunal, largely with the members of the tribunal which you are the Chairman. The area of concern is whether my client’s interest, this is from our point of view, my client’s interest whether the tribunal is totally partial, is going to be totally impartial ....”
At p 9 of the transcript, His Honour goes on as follows:
“Well let’s be clear about the use of terminology as the result of these statements of Mrs Barnett that the Chairman was and using your word, intimate with Mr Barnett. ... well you take that as a matter of fact. I mean it is not a matter that is allegation, it is a statement of fact from Mrs Barnett which I have disclosed to you. I mean, as I said, it is a judicial legal fraternity knowledge.
Mr Henao: Your Honour, in the course of my address I said that its more than a colleague - colleague relationship.
Amet J: I accept that and I’ve made the concession to you as a matter of fact upon which we should proceed so that it doesn’t remain an allegation and there’s nothing to be gained by continuing to use the word allegation, as it is a matter of fact. The friendship we built up as judicial colleagues, friendship built up as Christian partners and friends who then began to attend the same church to the point of intimacy. Wherein the Chairman and his wife on many occasions were requested to by the Barnetts to assist in marital counseling .... That is the matter that is common knowledge in the judiciary, indeed the legal fraternity. The further fact of the intimate associations of the Barnetts with the Amets is a matter known to the judicial and legal fraternity ....”
Finally, on p 10 His Honour said,
“Of course the relationship of our intimacy continues up to this present time and is not a matter that is of any secret to anybody. It’s just that aspect, that way you put it, whether in fact there was any further communication, specifically in relation to the tribunal’s work, taken place. If in fact it took place, the legal issue of whether there might be any appearance of justice not seeming to be done. I accept that we can deal with it.”
It is that material, plus the matters disclosed in the affidavits, that the plaintiff says establish an intimate relationship between Mr Barnett and Justice Amet. The relationship, according to the plaintiff, goes beyond the normal relationship between judges and, therefore, could be such that could raise a reasonable suspicion of bias. It does not appear to be disputed that the friendship was intimate, that the Amets helped the Barnetts through troublesome times of the Barnetts’ marriage, that the Amets and Mr Barnett were practising Christians together, and that, for a time. Mr Barnett attended the same church as the Amets. Mr Barnett would also go to Justice Amet if he was looking for Mrs Barnett at times of marital disharmony.
So that is the material that the reasonable and fair-minded person is to consider, together, of course, with what Mrs Barnett has said about the continuing contact between Justice Amet and Mr Barnett. That Justice Amet is keeping Mr Barnett informed about Mr Diro’s case right up to the present, bearing in mind that Mr Barnett was out to “pin” Mr Diro, according to Mrs Barnett. Of course, that reasonable and fair-minded person is also aware that Mrs Barnett was married to and living with Mr Barnett at the time of the Forestry Inquiry, when he allegedly made the statements about “pinning” Mr Diro and also about “killing” him through the media.
I don’t think that the reasonable and fair-minded Papua New Guinean can be expected to be well versed in the law of evidence and to appreciate fully the meaning of hearsay evidence or its weight. I am of the view that once Mrs Barnett’s story was allowed to be presented through the plaintiff and Ms Kila, the fact that it was hearsay would have little impression on our said person. It would be implanted in the person’s mind that that was Mrs Barnett’s story, and the fact that it was not in affidavit form sworn by Mrs Barnett would mean very little to our reasonable Papua New Guinean. Those in and close to the legal fraternity know that at times many people say things, but when called upon to put it into affidavit form or come to court and swear to it on oath, they then sometimes decline.
It is important also that the suggestion here was not actual bias but, rather, the suspicion of it in the minds of persons with no inside knowledge of Justice Amet’s personal qualities. It is clear in law that the appearance created by such an association, in the mind of a reasonable man, that justice might not be done to a party cannot be remedied by denials, however true, that such association would have no effect on the outcome of the case. See Boateng v The State (supra). I cannot agree with the Tribunal or Mr Damem when it was stated that Boateng v The State is not relevant to the present case because, here, “parties and witnesses were not involved”. To my mind, in a nutshell, Boateng v The State was stating clearly, yet again, that in any legal proceedings, not only must justice be done but it must appear to be done.
It is my view that a reasonable and fair-minded person who has sat and listened to the proceedings in the Tribunal and is aware of all the contents in all the affidavits would have a reasonable suspicion that a fair hearing for Mr Diro was not possible before the first defendant. In saying that, I repeat again that there was no actual bias alleged against Justice Amet.
I, therefore, quash the decision of the Tribunal refusing the plaintiff’s application that the chairman of the Tribunal, the first defendant, should disqualify himself from further participation in the Tribunal proceedings.
The plaintiff is also asking this Court for an order in the nature of prohibition, prohibiting the first named defendant or alternatively, each of the defendants from participating in the Leadership Tribunal hearing.
One of the grounds is set out in 3(b) of the plaintiff’s statement as follows:
“... a fair-minded person would have a reasonable suspicion that the plaintiff might not obtain a fair hearing before the first defendant, or alternatively before any of the defendants, by virtue of the findings and comments contained in the reasons of the said Leadership Tribunal in refusing the plaintiff’s application that the first defendant disqualify himself.”
I say from the outset that if any order was made here in relation to prohibition, it would apply to all of the defendants. The ruling of 6 August was a ruling of the Tribunal as a whole. I can see no reason at all for only applying such an order to the first defendant.
The plaintiff relies, in particular, on what was said by the Tribunal at p 13 of the transcript:
1.       At para 2, it said:
“The applicant has sought to prove and has succeeded in manufacturing a ‘suspicious association’ between Mr Barnett and Justice Amet. The plain, uncontested facts of the relationship were that they were judicial colleagues, and a friendship developed just like all judges have with one another of one degree or another.” (emphasis is mine)
2.       At para 4, it reads:
“The applicant’s counsel has somehow by the concoction of the imagination scurrilously and offensively attempted to impute some ‘suspicious motive’ to this quite ordinary friendship between judicial colleagues, extended by church association and help in marital problems.” (emphasis is mine)
I am inclined to agree with Mr Henao when he says that those parts of the findings by the Tribunal had no foundation at all. Paras 11(a), (b), and (c) of his affidavit of 14 August 1991 refer to the two events and read as follows:
“(a)    the ‘plain uncontested facts’ were only uncontested in so far as Mr Barnett was not available for cross-examination. His ‘affidavit’ was received by fax and no opportunity to cross-examine him was available. His evidence of the relationship was ‘contested’ in so far as it conflicts with the account given by Mrs Barnett to the plaintiff and Elma Kila as deposed to by them (albeit hearsay) in their said affidavits.
(b)      There was no evidence whatever, nor was it ever suggested by the prosecutor, that the applicant (the plaintiff herein) was involved in any ‘manufacturing’ and the said finding of the Tribunal has no foundation in the evidence before the Tribunal or at all.
(c)      I deny that the application was in any manner or form based upon a ‘concoction’ or that either the plaintiff or I have acted ‘scurrilously’ or ‘offensively’ in respect of the application that the first defendant disqualify himself from taking any further part in the Leadership Tribunal hearing.”
I am of the view that both the plaintiff and Mr Henao have a valid reason for being annoyed by such comments. They were unwarranted and unnecessary. In fact, the comments made about Mr Henao could be considered to be quite serious in the eyes of a lawyer. But most importantly, there was nothing to support such comments.
The plaintiff and Mr Henao were only reporting to the Tribunal as to what the plaintiff and Ms Kila had been told by Mrs Leela Barnett in telephone conversations between them. During the hearing, there were no suggestions that anything had been manufactured or concocted on the part of either the plaintiff or Mr Henao. In fact, it was very much to the contrary. On p 7 of the second tape on transcript, the Tribunal approved of what Mr Henao and the plaintiff did in bringing Mrs Barnett’s information to its attention. It reads as follows:
“Mr Henao: ... it is our course of action that we took in bringing these matters to the attention of yourself to the prosecution. It is our submission that it is the proper and appropriate course of action to take in the circumstances and further that it is our submission that I am duty bound as counsel for my client to protect his interest at any point in time where he feels that justice might not be properly discharged .... I would like to make it very clear to the Tribunal, my colleagues and the public that the allegations are serious but we did not manufacture those allegations. The timing of that information coming to our knowledge is unfortunate, it came and we had no choice but to put them and consider that very seriously - quite a number of hours has resulted in this application we made.
Amet J: ... we think it proper that it was revealed publicly, as I indicated to you yesterday. I’ve discussed with my colleagues that it’s best that it was so revealed and may be given the opportunity to be cleared up to everybody’s satisfaction rather than you keeping the knowledge to yourself .... That there be any doubt lingering on in your minds as to whether or not you should have disclosed this information. So we have no difficulty with your duty of revealing those communications, and there is no aspersion on your client nor you in bringing the matter to the Tribunal’s attention as I asked you yesterday ....” (my emphasis)
The applicant (Mr Diro) was accused of “manufacturing a suspicious association between Mr Barnett and Justice Amet”. The word “manufacture” is defined in the Oxford Advanced Dictionary of Current English as follows: “to invent (a story, an excuse, etc).” To my mind, in the light of the evidence, there was no foundation for the Tribunal to accuse the plaintiff of “manufacturing”. It is a serious matter. It is a direct attack on the plaintiff’s credibility.
Mr Henao,it was said, “somehow by the concoction of the imagination scurrilously and offensively attempted to impute ....” Firstly, the word “concoction” is defined in the said dictionary as follows: “something that is invented (a story, an excuse, a plot for a novel etc)”.
That is almost the same as the word “manufacture”. Then the word “scurrilously” is defined in the said dictionary as follows: “using, full of, violent and taunting words of abuse e.g. scurrilous attacks upon the Prime Minister”. It does not seem to me that there was any foundation for the Tribunal to accuse the plaintiff’s lawyer of being scurrilous or to have concocted anything. To my mind, it was a serious error to make on the part of the Tribunal.
I am, therefore, of the view that a reasonable and fair-minded person, after hearing what I have just learnt, would have a reasonable suspicion that a fair hearing from now on, because of what was said about the plaintiff and his counsel, is not possible.
It follows that I now order that the defendants be prohibited from participating further in the said Leadership Tribunal hearing.
Because of the orders I have made, I am of the view that it is not necessary to consider any other relief or grounds for relief sought by the plaintiff.
As I indicated earlier in this judgment, I would now like to touch on the production of the affidavits of the plaintiff and Ms Kila. I am of the view that they should not have been presented to the Tribunal in their present form, and when they were presented, they should not have been made public or accepted by the Tribunal. I say that because, essentially, they contain hearsay evidence. The information supplied by Mrs Barnett was very serious, the type of information that could be damaging to Justice Amet’s name. Evidence for that type of application should only be the evidence. That means Mrs Barnett should have sworn an affidavit. People often say things, but when asked to say it in affidavit form or on oath in Court, they often decline.
I do not agree that Mrs Barnett’s verbal information, which was also fairly vague, needed to be immediately rushed before the Tribunal. To my mind, the Tribunal could have proceeded and, if her affidavit was forthcoming, then and only then should the Tribunal have been notified. Of course, her affidavit would have to be clear and precise, fully particularising all of her allegations. I am sure that the plaintiff’s lawyer could have explained fully to the plaintiff the weakness in hearsay evidence and that he (Mr Diro) should not lose confidence in the Tribunal on that type of information.
But, unfortunately, once the affidavits of Mr Diro and Ms Kila were made public, the damage was done. Irreparable damage at that. This must never happen again. It has held up the proceedings before the Tribunal to the extent now that three new members need to be appointed by the Chief Justice and then to start afresh.
Lawyer for the plaintiff: Henao Cummingham Priestly.
Amicus curiae: Public Prosecutor.