N761

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

GABIR AND OTHERS

V

KORONAI, SANDAUN PROVINCIAL GOVERNMENT AND NATIONAL PUBLIC SERVICES COMMISSION

Wewak & Waigani
Bredmeyer J
14 April 1989
12 May 1989
23 June 1989
2 October 1989

STATE SERVICES - Public servants - Disciplinary offences - Disciplinary tribunal constituted by Departmental Head - The hearing of charges - Evidence on - Not bound by rules of evidence - Must rely on cogent evidence - Duty to observe rules of natural justice - Fair procedure - Freedom from bias - Public Services (Management) Act 1986, ss 45(1), 47(5).

ADMINISTRATIVE LAW - Natural justice - Duty to observe - Public Service - Disciplinary tribunal constituted by Departmental Head - Scope of duty - Fair procedure - Freedom from bias - Decision to be made on cogent evidence - Public Services (Management) Act 1986, ss 45(1), 47(5).

ADMINISTRATIVE LAW - Particular tribunals - Disciplinary tribunal constituted by Departmental Head - Practice and procedure - Evidence - Duty to observe rules of natural justice - Onus of proof - Public Services (Management) Act 1986, ss 45(1), 47(5).

Section 45(1) of the Public Services (Management) Act 1986 (the Act) creates a disciplinary offence as follows:

"An officer who:

...

(c) except with the consent of the Head of State, acting on advice, or of an officer authorised for the purpose by the Head of State, acting on advice, publicly comments on the administrative action or the administration of a Department;... is guilty of a disciplinary offence and is liable to be dealt with and punished..."

By s 47(5) of the Act, where a disciplinary charge is made, the Departmental Head is required to consider "reports relating to the offence and charge, the reply and explanation (if any) of the officer charged and any further report that he thinks necessary" and then to form an opinion as to whether the charge has been sustained. The Act contains no provisions relating to what kind of evidence is admissible.

Held

(1) A Departmental Head hearing a disciplinary charge under the Act:

(a) is not a court of law and is not bound by the technical rules of evidence which apply to a court;

(b) may hear any evidence, including hearsay evidence, which is sufficiently cogent to be convincing;
In re James Eki Mopio [1981] PNGLR 416 at 418-419, followed.

(c) must observe the rules of natural justice:

(i) by basing his decision on evidence which tends logically to show the existence or non-existence of facts relevant to the issue to be determined and disregarding worthless evidence;

R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 487-488, followed.

(ii) by adopting procedures which are fair in all the circumstances; and
Wiseman v Borneman [1969] 3 All ER 275 at 277, followed.

(iii) must be free of bias and must be seen to be free of bias; and

(d) should come to a decision: he should not later supplement, embellish or enlarge it lest he give the impression of being partisan.

(2) The standard of proof in proceedings for disciplinary charges under the Act, which can result in dismissal from office, is higher than the civil standard of proof on the balance of probabilities and a little lower than the criminal standard of proof beyond reasonable doubt.

In re James Eki Mopio [1981] PNGLR 416, followed and applied.

(3) In the circumstances, where a number of officers had been found guilty of offences contrary to s 45(1)(c) of the Act, demoted one level and transferred out of their Province;

(a) there had been errors of law in:

(i) making findings of guilt on matters relevant to punishment only;

(ii) making findings of guilt based on worthless evidence;

(b) there had been errors of law and breaches of natural justice in not reading all of the relevant statements available to the inquiry sufficient to vitiate the decision; and

(c) there had been a breach of natural justice in the investigating officer socialising with the officers charged after the conduct of interviews was concluded and before his report was made.

Cases Cited

Dellow’s Will Trusts, Lloyds Bank Ltd v Institute of Cancer Research [1964] 1 All ER 771;[1964] 1 WLR 451.
Mopio, James Eki, In re [1981] PNGLR 416.
R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456.
Wiseman v Borneman [1969] 3 All ER 275; [1969] 3 WLR 706.

Judicial Review

This was the hearing of an application for judicial review of a decision of a Departmental Head on disciplinary charges under the Public Services (Management) Act 1986.

Counsel

A Jerewai, for the plaintiffs.
L Tilto, for the defendants.
Cur adv vult

2 October 1989

BREDMEYER J: The seven plaintiffs are senior public servants in the West Sepik or Sandaun Provincial Government and the first defendant, Richard Koronai, is the Secretary of that Province and as such is their Departmental Head. On 25 January 1989, he judged the seven plaintiffs guilty of disgraceful and improper conduct, an offence under s 45(1) of the Public Services (Management) Act 1986 and ordered their demotion one level in the public service and ordered that they be transferred to another province. The case before me is an application for judicial review seeking to quash those orders.

In order to understand Mr Koronai’s decision, it is necessary to sketch in the background. On 1 October 1987, the Post-Courier published an article claiming that there was a sex racket involving senior public servants in Vanimo and West Irianese refugee women. The article claimed that senior public servants were having sexual relations with women from the refugee camps and threatening them with deportation if they did not co-operate. The Government acted promptly on the allegations and the Department of Foreign Affairs investigated them and published a report on them dated 13 October 1987. The officers who compiled the report of the Department of Foreign Affairs found it very hard going. The inmates of the refugee camps generally refused to discuss the issue and denied any knowledge of sexual relations between refugee women and public servants. Similarly, the Government officers interviewed denied any knowledge of sexual affairs. Some community leaders around town did express concern about the rumours and were able to pass on the rumours but were unable to give any first-hand evidence of any sexual relations between refugee women and public servants. The report concluded that, in spite of the lack of evidence on any organised racket, the team found evidence of incidental encounters between female refugees and two public servants, Mr Danny Lane and Mr Eddie Gabir, and recommended that further investigations be carried out on these two officers. The report also pointed out the very strong personal differences between public servants working in Vanimo and that these differences may have contributed to the sex scandal being blown out of proportion.

A further investigation was ordered by the Minister for Provincial Affairs and a committee of four men consisting of three public servants and a village leader was appointed to carry out the task. This committee was led by Mr Peien Aloitch. They carried out their investigation between 18 April and 13 May 1988. Their report is headed "An Investigation Report on the Sex Scandal Issue at Blackwater Refugee Holding Camp". I will refer to that report as the Sex Scandal Committee Report and to that committee as the Sex Scandal Committee. The public servants involved all came from the Department of West Sepik. That committee found that scandalous activities involving public servants and refugee women were occurring. They found that senior public servants were procuring women from Blackwater Camp for the purposes of prostitution. The committee named the public servants involved as Leo Saulep, Danny Lane, Dr Marcus Woibun, Willie Ao, Eddie Gabir, Thomas Aitoney and Eugene Fofoe. The committee recommended that public service disciplinary charges be laid against these men and that, should they be convicted, they be dismissed or be demoted to lesser jobs and be transferred out of the West Sepik Province.

The Sex Scandal Committee based its report on interviews with a number of witnesses. They interviewed three refugee women, two of whom admitted sexual relations with several public servants. Their main interviewees were two prominent West Irian men, one Nick Nere, now a naturalised Papua New Guinea citizen, and the other Eko Mason. Each of these men gave evidence that certain public servants had sexual relations with individual refugee women, for example, Nick Nere said that the public servant, Jerry Poivi’s "favourite sex partner was a West Irianese refugee Octavina Sibi". Poivi is one of the plaintiffs in this case. They also gave evidence of group sexual activities whereby public servants, for example, Eddie Gabir, organised a party for six or seven public servants and arranged for six or seven refugee girls to attend that party for the purposes of engaging in sexual intercourse afterwards. The trouble with the statements obtained from these two West Irianese men is that they were not asked whether they had direct knowledge of these activities or whether they were passing on hearsay knowledge. The Committee did not ask them that and did not think it important. The Committee accepted their evidence as truthful even though in many places it was mere hearsay, gossip and rumours rather than direct, first-hand evidence. Two of the public servants, Eugene Fofoe and Willie Ao, gave statements to the Committee but the rest of the public servants implicated, refused to give evidence to the Sex Scandal Committee. I add that the Committee was severely handicapped as it was not appointed under any statute and it had no power to compel witnesses to answer questions.

The Sex Scandal Committee carried out its investigation between 18 April and 13 May and submitted its report to the Minister on 25 July 1988. Following the publication of that report, on 25 August 1988, the Secretary of the Department of West Sepik, Mr Richard Koronai, charged each of the seven present plaintiffs with the offence of disgraceful and improper conduct under s 45(1) of the Public Services (Management) Act 1986. As an example I quote charge against Dr Woibun:

"That you are now known to have been involved in the sex racket issue involving senior public servants of Vanimo and women inmates of Blackwara Refugees Holding Camp highlighted in the Post-Courier newspaper on October 1st 1987. Your involvement abused the dignity of the public office, the Assistant Secretary, you hold for the Department of West Sepik Province, and you are obviously being implicated to have abused the refugees in the context of United Nations Conventions and its Protocols on Refugees. Government investigations conducted now have established you have had related sex racket sexual affairs with Ms Martina Warinusi, a woman inmate of the Blackwara Refugee Camp."

As a second example I quote the charge against Eddie Gabir:

"That you are now known to have been involved in the sex racket issue involving senior public servants of Vanimo and women inmates of Blackwara Refugees Holding Camp highlighted in Post-Courier newspaper on October 1st 1987. Your involvement abused the dignity of the public office, Scientific Officer Class 2, you bold for the Department of West Sepik Province, and you are obviously being implicated to have abused the refugees in the context of United Nations Conventions and its Protocols on Refugees. Government investigations conducted now have established you have been the common organiser for women inmates of Blackwara Refugee Camp meetings with senior public servants of Vanimo for sexual activities."

Note the common wording in each charge and then the particular allegations against the officer in the last sentence of each charge.

Each of the seven plaintiffs was given a written notice of the charge and given seven days in which to admit or deny the charge in writing. They all denied the truth of the charge in writing and Mr Koronai found them all guilty of the offences. He conducted no further investigations. His finding of guilt was based on the two reports before him, the report of the Foreign Affairs Committee and the report of the Sex Scandal Committee. As I have said, there is very little evidentiary material in the first report so it is fair to conclude that Mr Koronai relied largely on the second report which, as I have said, contained much hearsay information, principally from the two male witnesses, Nick Nere and Eko Mason, whom I have mentioned.

THE REVIEW

The seven plaintiffs then exercised a right of review given to them under s 17 of the Public Services (Management) Act. They asked for a review under that section by the Public Services Commission and the Public Services Commission sent its Principal Investigator, Mr Eremas Andrew, to Vanimo to investigate the allegations. Some of the letters refer to the investigation by a Public Services Commission team but I consider the word "team" is a misnomer. Mr Andrew conducted all the interviews. Another investigator, Willie Sabos, who was present for part of the time while Mr Andrew was in Vanimo, sat in on some of the interviews and he asked some of the questions. He conducted no separate interviews and played no part in writing the report. The third member of the team was a typist who accompanied Mr Andrew to Vanimo to type the statements which he obtained. Mr Andrew wrote individual reports on each of the public servants involved and completed them between 9 and 13 December 1988. Each report is about 20 pages long and, although it contains much common material, it also contains a detailed summary and analysis of the evidence for and against that particular public servant. Mr Andrew had before him as evidence the reports of the two earlier committees, a long affidavit from Mr Peien Aloitch, Chairman of the Sex Scandal Committee, specially prepared for Mr Andrew. This nine-page affidavit summarises the evidence which his Committee received and includes some details not included in the statements attached to the Sex Scandal Committee’s report. Mr Andrew is a law graduate and has had some considerable experience as an investigator. He reinterviewed the two principal male witnesses, Nick Nere and Eko Mason, and obtained affidavits from them.

Because of his legal training, he was able to separate what was rumour and hearsay from what was direct evidence. Mr Andrew reinterviewed several of the refugee women who had been interviewed by the Sex Scandal Committee and these included Octavina Sibi, Martina Warinusi and Johanna Sapioper. He also interviewed a number of other witnesses whose names were mentioned in the evidence with a view to ascertaining if they supported or denied that evidence and he also interviewed the seven public servants involved (the present plaintiffs) and received full co-operation from them.

Mr Andrew discussed all the evidence at length, analysed it in relation to some common issues and in relation to each of the seven public servants and concluded that the evidence was insufficient to support the charges. He thus recommended that all the men be found not guilty. He added a rider, however, on the severity of punishment. He said that, even if there was sufficient evidence to sustain the charges, the punishment was manifestly excessive and that an appropriate punishment would be to demote each man one level and to transfer him out of the Province.

The Public Services Commission considered Mr Andrew’s report with some care and endorsed it in full. On 22 December 1988, the Chairman of the Public Services Commission wrote a 13-page letter to the Secretary, Department of Sandaun Province, summarising Mr Andrew’s report and giving its recommendations as I have stated above. This letter was drafted by Eremas Andrew and is a composite report of the separate reports which he prepared on each public servant. The Public Services Commission did not send to Mr Koronai the witnesses’ statements obtained by Mr Andrew. The 13-page report contains legal arguments and analysis of evidence. It discusses the grounds of review asserted by the seven public servants. In summary, it rejects the allegation by the public servants that the Sex Scandal Committee lacked any legal basis. It considered that the refugee women involved had refugee status and thus came under the United Nations Conventions and Protocol on Refugees. It considered that the charges laid were badly worded, being too general and vague. They failed to specify particulars of the dates, times and places when the sexual relations were said to have taken place. They failed to specify the provisions of the United Nations Conventions and Protocol said to have been breached. The report considered the evidence in relation to each of the public servants. It considered that the applicable standard of proof in cases of this kind is as set out in a Leadership Tribunal case, In re James Eki Mopio [1981] PNGLR 416, namely, higher than the balance of probabilities but a little lower than proof beyond reasonable doubt. The report discussed whether there was sufficient evidence to sustain the charges. In relation to six of the public servants, it concluded that the evidence was inadequate and unsatisfactory to justify the charges. In relation to Mr Eugene Fofoe, the situation was a little different as he admitted having sex with two refugee women but nevertheless denied that he was guilty of misconduct in office as the incidents took place outside of official hours and in his own house. The report discussed this as follows:

"7.14 The Commission could not find any evidence to suggest that, in having sex with the two refugee women, he was abusing them within the context of the 1951 Convention and 1967 Protocol or that he was abusing his office, or position, as alleged.

7.15 The Commission also could not find any evidence that Mrs Octovina and Sarianti were not willing partners to the act of sexual intercourse nor was there any evidence that Mr Fofoe was divulging official and confidential information during the sexual encounters with these two refugee women.

7.16 The Commission also found no specific provision in the 1951 Convention and 1967 Protocol prohibiting public servants from having sexual relationships with refugees or vice versa. Indeed Article 26 of the 1951 Convention guarantees refugees freedom of movement, subject only to any regulations applicable to aliens generally in the same circumstances."

And finally, the report recommended that there was no evidence on the applicable standard to justify the charges but, even if there was, the punishment was manifestly excessive and adequate punishment would be to demote them one level and transfer them to other Provinces.

Mr Koronai thus had before him the 13-page report from the Public Services Commission, but not the affidavits, and the reports from the two earlier committees. In addition, on 6 December 1988, 16 public servants signed a three-page letter of petition against Mr Koronai. They sent it to the Premier and five of the seven plaintiffs signed that letter. This letter is a stinging attack on Mr Koronai under the following headings:

Unjustified sacking of officers,
Mismanagement of public funds,
Practice of nepotism,
Rushed decision-making,
Breaches of public services general orders,
Misleading advices,
Creating bad image for the government and the country,
Contempt of court and
Inadequate managerial ability.

The letter concluded with the recommendation that Mr Richard Koronai be removed as Departmental Head of the West Sepik and that two Assistant Secretaries, Mr Peien Aloitch and Mr C Viruri, be also removed from their positions. The letter recommended that an outside secretary be appointed to replace Mr Koronai and to clear up the bad state of affairs left by him and recommended three names, two of whom were expatriates, to replace him. Mr Koronai made his decision on the charges against the seven men on 25 January 1989.

On 24 January 1989, he received a letter from the Premier which the Premier called a "counter response" to the Public Services Commission review recommendations. In that letter, the Premier refers to the letter I have just mentioned, of 6 December 1988, prepared by the public servants who were initially sacked over the sex scandal. He said that the intention of that letter was to manoeuvre a vote of no-confidence against his Government and that this matter was of most concern to his Government and that the letter could be seen as a case of treason. Consequently, he said, political reprisal ought to be taken. He therefore recommended that the Secretary should feel confident to dismiss all these officers and he could do so with government backing and he urged him to take immediate disciplinary action against those officers who prepared and signed that letter intending to destroy his Government. The Premier also alleged that Eremas Andrew after official hours was seen drinking with the sacked public servants at the Vanimo Resort Hotel and thereafter continuously throughout the night in Dr Woibun’s house until the next day when he was escorted to the Vanimo Airport by those public servants in order to catch his flight to Port Moresby. I discuss those allegations later. The Premier urged the Secretary to punish the public servants not only for their involvement in the sex scandal but also because of their letter of 6 December 1988 which I have already mentioned.

The Premier recommended that disciplinary action be taken against the public servants who signed the letter of 6 December 1988. Section 45(1)(c) of the Public Services (Management) Act is relevant. That section creates a disciplinary offence as follows:

"An officer who:

...

(c) except with the consent of the Head of State, acting on advice, or of an officer authorised for the purpose by the Head of State, acting on advice, publicly comments on the administrative action or the administration of a Department;...

is guilty of a disciplinary offence and is liable to be dealt with and punished..."

In giving his decision on the charges on 25 January 1989, Mr Koronai recited the two recommendations he had received from the Public Services Commission upon review, namely, that he find the public servants not guilty and reinstate them, or, if he disagreed with that recommendation, that he vary the penalty by demoting them one level and transferring them out of the Province. He accepted the second recommendation and, accordingly, demoted each officer one level down from his substantive classification and caused him to be transferred out of the Province. Mr Koronai gave the following reasons why he "declined to accept" the first recommendation and "why he accepted" the second. I quote from the reasons in relation to Willie Ao but similar reasons were given for the others:

"Having read through the Commission’s report and its recommendations especially recommendations 10(1)(i) and 10(1)(ii) and after having received appropriate advices, (sic) I decline to accept recommendation 10(1)(i) and I accept recommendation 10(1)(ii) because of the following reasons:

(a) Reinstating officer with Department of West Sepik will not assist me and the Department especially the Division of Forests and the current Government of this Province in the smooth and effective running of the Province.

(b) Officer, together with others of his groups (sic), was involved with the Opposition group headed by former Speaker, Hon John Wotong in trying to put up a Vote of No-Confidence in the current Provincial Government and to get him to work for this Government is unwise.

(c) Officer is a signatory to a letter of Petition accusing me and A/FAS Community & Field Services and A/FAS Economic Services of being bad and misleading administrators and reinstating the Officer in this Department is not going to improve our working relationship and as a result could affect the running of this Department in carrying out both the National and Provincial Government Policies in this Province."

In an affidavit sworn on 20 March 1989, three months after the decision, Mr Koronai gave the following reasons for his decision. I quote from the numbered paragraphs of his affidavit:

"9. I, having considered the recommendations, decided to adopt the second alternative as the officers involved had not cleared themselves of the findings of the two investigating committees.

10. I decided also to transfer them out of the province and that was done in the best interests and the good administration of this province as the officers were trying to create disharmony between fellow public servants and members of the provincial government.

11. The publicity the scandal had received in this province meant it was in the plaintiffs’ own best interests that they be transferred out of the province.

12. The plaintiffs/applicants have, after their suspension, made it difficult administratively for me and politically for the current provincial government and since they are all senior public servants it would be in the best interest of the good administration of this province that they be transferred out as I have recommended.

13. Next to this my affidavit and marked with the letter "C" is a letter from the Premier of the province, Mr Egbert Yalu, who indicates that the plaintiffs are a threat and would not co-operate with either the provincial government or the provincial public service especially with me as the Secretary.

14. Finally I verily believe and further reiterate that it is in the best interests and good administration of the province that the plaintiffs be transferred out on their demoted levels as it would be totally impossible to work amicably with them even if they were reinstated."

Special weight should be given to Mr Koronai’s reasons given at the time because they represent his thinking at that time. The later reasons in pars 10 to 14 repeat, in other words, the substance of pars (a), (b) and (c) of the original reasons but par 9 is an additional reason. Mr Koronai considered that the plaintiffs "had not cleared themselves of the findings of the two investigating committees". In the original reasons of 25 January 1989, there was no mention of why each man was found guilty of the particular offence alleged against him. No reasons, for example, why Dr Woibun was found guilty of "disgraceful and improper conduct in that he had sexual affairs with Martina Warinusi, a woman inmate of Blackwara Refugee Camp".

ERRORS OF LAW

I consider that Mr Koronai’s original reasons for his decision of 25 January 1989 confuse two issues: that of guilt and punishment. His three stated reasons, pars (a), (b) and (c), which I have quoted, relate to the issue of punishment, yet he has used them to justify his finding of guilt. The logic of his stated reasons is as follows:

The reasons why I decided to find them guilty and punish them by demotion and transfer out of the Province:

(1) they were involved in organising a vote of no-confidence against the current Provincial Government,

(2) they signed a petition against me accusing me of maladministration, and

(3) the relationship between the Officer and Provincial Government is so bad that we cannot work smoothly and effectively together.

The vice of this reasoning is that Mr Koronai has used three reasons, which are perfectly proper to consider in imposing punishment, to justify his conviction as well as his decision on punishment. That is a very serious error of law and justifies the granting of this review. It is not cured by saying three months later, "I also thought each man had... not cleared himself of the findings of the two investigations committees". I consider the plaintiffs are entitled to get the benefit of the defendant’s reasons given at the time, and not those given later to assist the defendant’s case in this litigation.

WORTHLESS EVIDENCE

The Public Services (Management) Act 1986 does not state what kind of evidence is admissible to prove a charge. By s 47(5) of the Act, the Departmental Head has to consider "reports relating to the offence and charge, the reply and explanation (if any) of the officer charged and any further report that he thinks necessary" and then form an opinion as to whether the charge has been sustained. Contrast this with a Leadership Code offence where the Tribunal can "enquire into the matter referred to it without regard to legal formalities or the rules of evidence..." (s 27(4) of the Organic Law on the Duties and Responsibilities of Leadership (Ch No 1)). Despite the absence of such a provision, I consider that a Departmental Head hearing a disciplinary offence under the Public Services (Management) Act is not a court of law and thus should not be bound by the technical rules of evidence which apply in a court of law. Thus he can hear hearsay evidence and admit copies of documents, for example.

At the same time, the allegations of misconduct in this case are serious — in most of the cases, senior public servants (married) having sexual intercourse with refugee women — and the consequences are serious — possible dismissal from top jobs. It is commonsense to say that, in those circumstances, the evidence must be sufficiently cogent to convince, to prove the allegations. Hearsay evidence on these matters, whilst not inadmissible, is not likely to convince. Indeed, it is likely to be worthless. Thus evidence from A that B told him that X and Y had sexual intercourse on a certain day is worthless to prove that X and Y had sexual intercourse. This is really a matter of commonsense and of good administration: a decision is more likely to be right or good if it is based on cogent evidence. But this principle is also supported by authority. In In re James Eki Mopio, the Court said, at 418-419:

"... Judge and jury alike must be ‘satisfied’ of the truth of the allegations or denials. What amounts to satisfaction will vary with the issues involved. The more trivial the question the more easily and swiftly will satisfaction materialize. The more momentous its consequence, the greater the amount of cogent evidence required..."

In Re Dellow’s Will Trust [1964] 1 All ER 771 at 773, Ungoed-Thomas J stated:

"... The more serious the allegation, the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it."

When the issue is whether X has had sexual intercourse with Y, hearsay evidence is worthless to prove that fact. In a court of law such evidence would be inadmissible. But before a commission of inquiry or a tribunal which has power to make inquiries, hearsay evidence to say that X and Y had sexual intercourse has value because it gives a lead to the inquiries; it points to where inquiries might be directed. Thus if witness A says B told him X and Y had sexual intercourse, then that allegation can be investigated. For example, B can be interviewed. What is the source of his knowledge? Does X or Y admit it? Are there any letters admitting the sex? Is there a witness who saw X and Y behaving in such a way from which sexual intercourse could be inferred, for example, registering in a hotel under false names as husband and wife? This is relevant to the Departmental Head who, under s 47(5) of the Public Services (Management) Act 1986, has some powers of inquiry. He can "call for any further report that he thinks necessary".

I have called the failure to act on cogent evidence an error of law. But it can also be seen as an error of natural justice. There can be no doubt that the Departmental Head, in hearing a disciplinary charge, is a one-man disciplinary "tribunal" and, as such, must observe the rules of natural justice.

I quote from Lord Diplock in R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 487-488:

"Where, as in the present case, a personal bias or mala fides on the part of the deputy commissioner is not in question, the rules of natural justice which he must observe can, in my view, be reduced to two. First, he must base his decision on evidence, whether a hearing is requested or not. Secondly, if a hearing is requested, he must fairly listen to the contentions of all persons who are entitled to be represented at the hearing.

In the context of the first rule, ‘evidence’ is not restricted to evidence which would be admissible in a court of law. For historical reasons, based on the fear that juries who might be illiterate would be incapable of differentiating between the probative values of different methods of proof, the practice of the common law courts has been to admit only what the judges then regarded as the best evidence of any disputed fact, and thereby to exclude much material which, as a matter of commonsense, would assist a fact-finding tribunal to reach a correct conclusion: cf Myers v Director of Public Prosecutions [1964] 3 WLR 145.

These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue."

Applying this principle, that before a disciplinary tribunal finds someone guilty of a serious charge of misconduct it must have before it cogent evidence, I consider that Mr Koronai breached a rule of natural justice in finding six of the plaintiffs guilty (excluding Eugene Fofoe) in that he acted on worthless hearsay evidence. In finding the plaintiffs guilty, he acted on the reports of the two investigating committees. Both of those reports contained much evidence which was only hearsay. He also had before him a long affidavit of Mr Peien Aloitch sworn on 28 November 1988. Mr Aloitch was the Chairman of the Sex Scandal Committee and he prepared this affidavit to submit to Eremas Andrew. It contains some repetition of matters found in his Committee’s report and some information left out of his report. (I comment in passing that it is an unusual practice for the chairman of an independent inquiry to later supplement his report by an affidavit. The report should speak for itself. He should not later supplement, embellish or enlarge it lest he give the impression that he is partisan.)

As an example of this hearsay evidence, I consider the evidence against Danny Lane who was charged with "disgraceful and improper conduct in that he had ‘sex affairs’ with Mrs Opi Kurni, a refugee woman". At that time, Mr Lane was Acting Secretary of the West Sepik Province. In the report of the Foreign Affairs Committee at p 20, Danny Lane is said to have been involved with Mrs Kurni, but the source of the information is not given. In the report of the Sex Scandal Committee his name is mentioned by three witnesses, Nick Nere, a West Irianese now naturalised as a Papua New Guinean citizen, Eko Mason and Lawrence Numberi, both West Irian men. Nick Nere said:

"9. Danny Lane slept with Mrs Opi Kurni overnight one night in his office. This is when he was Acting Secretary for the Department of West Sepik.

10. Mrs Martha Apen opened the door to the office and was surprised to see Mr Lane and Mrs Kurni."

On the face of it, this is hearsay evidence but it could be proved by an admission from Danny Lane, or Mrs Kurni, or by eye-witness evidence of Mrs Martha Apen, or from circumstantial evidence so that, although no-one saw them have sexual intercourse, it could be inferred from the circumstances.

The second statement about Mr Lane does not relate specifically to Mrs Kurni, but comes from Eko Mason. His evidence is as follows:

"6. Messrs Willie Ao and Eddie Gabir are the usual organisers of sexual meetings for senior public servants of Vanimo and women inmates of Blackwara Refugee Camp. Usually meetings begin in either Willie or Eddie’s houses. It always begin with a lot of drinking then the refugee women are utilised in and outside the houses for sexual intercourse activities. Senior public servants common for these meetings are Leo Saulep, Danny Lane, Dr Marcus Woibun, Willie Ao and Eddie Gabir himself.

7. One evening in 1987 I remember well what happened. Eddie Gabir and his refugee wife, Rose Numberi, arranged six girls from Blackwara camp with some men to a beer party at Eddie’s house in Pasi. Eight (8) cartons of beer were provided by the senior public servants involved. All who attend the party consumed the beer. Messrs Leo Saulep, Danny Lane, Willie Ao and Eddie Gabir were the government officers in the party. After the party the government officers took the refugee girls to a beach front west of Yako village and indulged in sexual intercourse with the girls. Two photographs were taken of Mr Leo Saulep while in the act with one of the refugee girls. Recordings were also made on Messrs Saulep and Lane conversations during these events.

8. The photographs and recordings made are with a friend of mine. These are very personal however I will try to obtain them for you."

This evidence purports to be first-hand ("I remember well what happened") and is supported by a tape-recorded conversation during those events.

The third statement in the Sex Scandal Report comes from Lawrence Numberi, a West Irian refugee at Blackwara Camp:

"2. I know it is known among refugees that Opi Kurni has been having sexual affairs with Danny Lane.

3. One time after heavy drinking Danny Lane abandoned Demianus Kurni (Opi Kurni’s husband) with Willio Ao in Vanimo Town.

5. Danny Lane returned to Pasi Forestry and had sexual intercourse with Opi in Ekbert’s house. Ekbert lives in Foretry Pasi."

Clearly all this is hearsay evidence.

The fourth, final piece of evidence against Danny Lane comes from the affidavit of Peien Aloitch of 25 November 1988 which I have already mentioned. Aloitch said that he interviewed a West Irian man named Obert Waruni who told him that one night he (Obert) drank with Danny Lane and other West Irianese including Demianus Kurni. Obert said Mr Kurni was "abandoned in a house in Vanimo understood to be that of Willie Ao. Lane, Obert and Mrs Kurni returned to Hubert Jamota’s house at Forestry, Pasi. Obert slept in a bed in one room and in the same room Danny Lane and Opi Kurni had sexual intercourse." Mr Aloitch did not mention this evidence in his report and did not produce a statement or affidavit from Obert.

It can be seen from this narrative of the evidence that much of the evidence against Danny Lane was not sufficiently cogent to prove the offence alleged against him. Mr Koronai erred in law and breached a principle of natural justice in not overtly disregarding the worthless evidence in relation to Danny Lane. The same comment applies to the other plaintiffs with the exception of Eugene Fofoe whom I discuss separately later.

DUTY TO ACT FAIRLY

There is no doubt in my view that a Departmental Head in hearing a disciplinary charge is required to observe the rules of natural justice. The best known of those principles are that no man shall be a judge in his own cause and no man shall be condemned unheard: Halsbury’s Laws of England (4th ed), vol 4, par 64 at 76. A third rule is: a duty to act fairly. Halsbury, par 66 at 80, states:

"Duty to act fairly. The content of the rules of natural justice is not stereotyped, and a duty to act judicially does not necessarily connote an obligation to preserve the procedural and evidential rules of a court of law."

One of the numerous cases quoted in Halsbury for that proposition is Wiseman v Borneman [1969] 3 All ER 275, a House of Lords decision, where Lord Reid (at 277) said:

"Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard and fast rules."

The precise content of the rules of natural justice affecting a tribunal may thus vary in accordance with the statutory framework of the particular proceedings and the circumstances of the particular case.

In the present case, Mr Koronai failed to act fairly in that he failed to read all the witnesses’ statements available to him. As I have noted earlier, he had before him the reports of the two investigating committees, Mr Aloitch’s affidavit reiterating and, to some extent, supplementing the report of his Committee, and the Public Services Commission report on Mr Andrew’s investigations. That report told him, for example, at par 7.4, that Andrew had taken more evidence from the officers concerned (the present plaintiffs), the refugee women involved and related witnesses and that that evidence had "mostly discredited" the evidence given to the Sex Scandal Committee. But the report did not annex the affidavits obtained from the witnesses nor did Mr Koronai call for them. I consider that Mr Koronai should have called for those statements and read them. He knew those statements had been taken, be knew their general tenor, that they refuted or did not support the findings of the Sex Scandal Committee, yet he failed to call for them and read them. To draw an analogy with a court case, if two statements are made by a witness, then the court must read both of them. The second may contradict or support the first. If the court failed to read the second statement, then its decision could be challenged on appeal.

The failure to read the witnesses’ statements taken by Mr Andrew can also be seen as an error of law. By s 47(5) of the Public Services (Management) Act 1986, the Departmental Head is required to consider:

"reports relating to the offence and charges the reply and explanation (if any) of the officer charged and any further report that he thinks necessary..." (My emphasis.)

Knowing of the existence and, in general terms, of the content of these statements from the Public Services Commission report, and that they were directly relevant to the charges, I consider that it was "necessary" that Mr Koronai call for them and read them and that in not doing so, he erred in law.

I illustrate the impact of Mr Koronai’s failure to read the additional statements taken by Mr Andrew by asking: What would have been the effect of reading those additional statements?

I answer this question again by reference to Danny Lane as an example. Mr Andrew interviewed and took affidavits from Danny Lane, Mrs Kurni, Mr Kurni, Martha Apen, Hubert Yamota (none of the above had been interviewed by the two earlier committees) and others, and he reinterviewed Nick Nere and Eko Mason. I take the allegation of Danny Lane having sex in the office with Mrs Kurni and having been seen by Mrs Martha Apen. Danny Lane said he was drinking all night at a party and came to work at about 8 am. He was with a labourer, Bonny Yilmai, who had also been drinking who lay down on the floor of the office and slept because he was drunk. Ten or fifteen minutes later the secretary, Mrs Martha Apen, came to work and was surprised to see the labourer sleeping on the floor. Danny Lane said he left with the labourer as they were in no fit state to work. He denied that Mrs Kurni was with him. Martha Apen gave an affidavit denying that she found Danny Lane in the office with Mrs Kurni. She supports Lane’s story that both he and the labourer mentioned were in the office when she got there at 7.45 am; they were both drunk and no-one else was there. Both left shortly afterwards as they were too drunk to work. She did not know of any particular relationship between Lane and Mrs Kurni. The incident is denied by Mrs Kurni. It can be seen from all this that Nick Nere’s hearsay evidence on this incident is totally refuted by the direct evidence.

I take a second illustration. Nick Nere was interviewed by Eremas Andrew. He told of another incident of Danny Lane’s adultery with Mrs Kurni which he did not mention to the Sex Scandal Committee. He said he had been told of the incident by three refugee men who were present, Isaac Wali, Francis Lanosarai and Yehuda Soroto. They were drinking with Danny Lane at Mr Kurni’s house at Blackwara Camp. They all slept there that night. Mr Kurni was drunk and slept on the verandah while Danny Lane slept with Mrs Kurni in the kitchen. Lane, Kurni, Mrs Kurni and Soroto were interviewed by Andrew. He could not locate Wali or Lanosarai. The allegation is totally denied by all those people. Mr Kurni, for example, said, Yes, there was a party at his house on 1986 New Year’s Eve. He was drinking but not drunk. Danny Lane was there and Kurni did not go to sleep at any time before Lane left. The kitchen is open — it would be totally impossible for Lane to have slept with his wife in the kitchen as the kitchen in the house is open and they could be seen from outside. The independent witness Soroto said much the same thing. He said no sex took place. If it had, he definitely would have seen it. Lane left at 2 am or 3 am. Whilst serving food at that party, Isaac Wali got cross at Lane because he said Lane had put his arm around Mrs Kurni and Wali said that was not the way to treat a married woman. Soroto did not himself see the arm around her back. No sexual intercourse took place.

Clearly, from these statements it can be seen that the hearsay allegation of Nere is not supported by any direct evidence.

The third witness to alleged sexual misconduct by Danny Lane was Eko Mason. I have already quoted his evidence about Danny Lane being present at a party at Pasi where refugee girls were procured for sex with Lane and the other public servants. It appeared to be direct evidence from Eko Mason, that is, he appears to have been present. He gave that evidence to the Sex Scandal Committee but declined to sign his statement. Eko Mason was reinterviewed by Eremas Andrew and gave a sworn statement. Mason was unable to find the tape recordings. In relation to the story in his first statement of a party at Pasi and girls being procured for sex with Lane and others, he said, "That was a mere story and I do not wish to say anything more about it". Clearly Mason resiled from his earlier story and his evidence on it could not be believed.

A fourth allegation of sexual misconduct by Danny Lane came from Lawrence Numberi who gave a hearsay account that one day Danny Lane drank with Mr Kurni in Vanimo town. He abandoned him at Willie Ao’s home and then went on to Ekbert’s house at the Forestry Station at Pasi and had sex with Mrs Kurni. This piece of evidence can be considered with the allegation of Obert Waruni given by Peien Aloitch, the Chairman of the Sex Scandal Committee and quoted by him in his affidavit, but not contained in his report. It is a very similar report and may be a description of the same incident. Lane drank with Mr Kurni at Vanimo town, left him there and then went to Hubert Yamota’s house at Forestry Pasi and there slept with Mrs Kurni. Obert Waruni slept in the same room.

Eremas Andrew did not interview Lawrence Numberi but he interviewed Lane, Mr Kurni, Mrs Kurni and Hubert Yamota, all of whom denied the allegation. Yamota said that Lane invited him, Mr Kurni and Obert Waruni to a Brothers League fund-raising party in town. Kurni left his wife with Yamota’s wife at Yamota’s house at Forestry Pasi. The men drank at the party in town and returned to Yamota’s house at about 4 am. Mrs Yamota woke up, came out of the bedroom and told the men that there was some food on the table which the men ate. Mrs Yamota then returned to the bedroom where she was sleeping with Mrs Kurni. After eating, Danny Lane got into the vehicle and left. Mr Yamota and Mr Kurni then slept in the open living space and Obert slept on the verandah. Obert was the first to go to sleep as he was very drunk and he fell asleep on the verandah while the three men, Lane, Kurni and Yamota were eating the food inside. Yamota’s statement is supported by the statement of Mrs Yamota, Lane, Mr Kurni and Mrs Kurni. Both Mrs Yamota and Mrs Kurni said they slept in the same bedroom all night and no-one else came in. No-one says that Lawrence Numberi was present that night. It is clear from their evidence that any fair tribunal would find the allegations unproved.

I remind myself that the standard of proof in disciplinary cases where an allegation of misconduct is made which can result in dismissal is higher than the civil standard of proof on the balance of probabilities and a little lower than proof beyond reasonable doubt. That was the standard the Supreme Court thought appropriate for the Leadership Code offences in In re James Eki Mopio and I think the reasoning applies equally well to public service disciplinary offences because each kind of proceeding results in the same serious consequence: dismissal. A disciplinary proceeding is a hybrid thing; it is not a criminal proceeding in that it does not result in a gaol term, and it is not a civil proceeding which normally results in an award of damages. But it is more akin to a criminal case in that it can result in dismissal or a fine. Dismissal from office in a disciplinary proceeding may be much more serious to the officer than, say, a fine in a traffic court, which is a criminal proceeding. A disciplinary tribunal is more akin to a criminal than a civil proceeding and I consider the Mopio standard of proof appropriate.

CONCLUSIONS

I have said that Mr Koronai erred in law in three ways. The first error, that he found the men guilty for three reasons which relate to punishment, relates to all seven plaintiffs. The second error of law, that he found them guilty on worthless evidence, applies to six only of the plaintiffs, not to Eugene Fofoe. The third error of law and also a breach of natural justice, that he did not read all the relevant statements, applies to six only of the plaintiffs, not to Eugene Fofoe. The reason why the second and third errors of law do not apply to Eugene Fofoe is that the evidence against him was direct, not hearsay, and that Mr Koronai had before him all relevant statements. Fofoe was charged with disgraceful and improper conduct in that he had sexual relations with two refugee women, Sarianti Numberi and Octavina Sibi. Both women gave direct evidence to the Sex Scandal Committee that they had sex with him in his home. Sarianti was paid K20 or K25 and Octavina K25. Fofoe admitted both incidents and payments but denied that it was disgraceful and improper conduct in that the incidents took place outside office hours and in his own home. If he is charged again, I leave it to the Departmental Head to decide if the offence has been committed, but I make the following comments which may be of assistance.

The evidence is clear in this case but the question of guilt is borderline. On the one hand, Eugene Fofoe is a Government officer, Officer-in-Charge Services in the Division of Personnel Administration, probably an officer without a great deal to do with the refugee women. He had sexual intercourse with the two refugee women in his house after hours and he paid them. His wife was away at the time so he thereby committed adultery which was at the time a criminal offence. It can be argued that this is his private life and his offence is one of immorality rather than a breach of any law. On the other hand, adultery was then a criminal offence and he took these women to his house in March 1988, that is, after the Post-Courier article of 1 October 1987, which first publicised the allegations of sexual relations going on between senior public servants and refugee women in Vanimo. That article gave a bad impression of the morality and integrity of certain public servants in Vanimo and for a public servant to engage in that conduct after the newspaper article is brazen.

The result of these errors of law and breaches of the rules of natural justice is that Mr Koronai’s decision of 25 January 1989 finding each plaintiff guilty of disgraceful and improper conduct and demoting them and transferring them from the Province, is quashed.

BIAS OF MR EREMAS ANDREW

Evidence was put before me that Mr Eremas Andrew was seen socialising and drinking with the plaintiffs whilst conducting his investigation in Vanimo in November 1988. Evidence of that came from two affidavits of the Premier, two affidavits of Richard Koronai, and affidavits from Peien Aloitch, Clement Filfi and Elsi Tobudi. On the other side, affidavits were tendered from Dr Marcus Woibun and Mr Andrew gave sworn evidence to me. The evidence from the Provincial Government side was that on the afternoon of 15 November, which was Mr Andrew’s last working day in Vanimo, he was seen drinking and socialising with a number of the plaintiffs at the Vanimo Resort Hotel, and that later he attended a party at Dr Woibun’s home given for him, and that he drank with them all night and then next morning they accompanied him to the airport and that they gave him presents of food to take to Port Moresby. Eremas Andrew denied that he was drinking with these men in the afternoon but says that at the hotel about 7.30 pm he was drinking with others when Dr Woibun, Jerry Poivi and others saw him and joined him and they stayed together drinking until the bar closed. Thereafter he went to Dr Woibun’s house and stayed until 11 pm. He then returned to the hotel and went to sleep. The next day three of the plaintiffs came around to the hotel and followed his car to the airport to say goodbye at the airport. They appeared to be a little bit drunk but he was not drunk. Dr Woibun said that he was drinking with Eremas Andrew at the hotel but that Eremas Andrew did not go to his house that night. I note that Mr Andrew’s evidence is in direct conflict to Dr Woibun’s evidence and I consider that Dr Woibun is lying when he said Eremas Andrew did not go to his house. So it is not necessary for me to resolve this evidence completely because, even on Mr Eremas’s own evidence, he drank with several of the plaintiffs at the hotel from 7.30 pm until the bar closed and then spent a further hour or so with them in Dr Woibun’s house. He was also with then the next morning as they escorted him to the airport and said goodbye to him at the airport.

Regarding the allegations of food, I find that Danny Lane did deliver some food to the hotel during the week for Eremas Andrew to eat and that when he returned to Port Moresby, a good quantity of food was prepared by his aunt, Elsi Tobudi, and that this food had largely been supplied to her, perhaps unknown to Mr Andrew, by the plaintiffs. In other words, apart from Danny Lane, the others did not give food directly to him; they gave it to his aunt to prepare and pack for him to take to Port Moresby. On his return to Port Moresby on 16 November, Mr Andrew worked flat out until 13 December on writing his reports. He said he was not influenced in any way by the drinking, socialising and gifts of food from the plaintiffs because when he left Vanimo on 16 November he had already made up his mind on the conclusions he would reach in his report. One of the principles of natural justice is that the decision-maker must be free of bias and must be seen to be free of bias and I consider that Mr Andrew’s socialising with the plaintiffs on the night of 16 November, when his report was not yet written and, of course, not yet announced, was completely wrong. As it says in s 59 of the Constitution, justice must be done and seen to be done, and his socialising with them would certainly give the impression that he was biased in favour of their side of the dispute. I therefore consider his report was tainted by this breach of natural justice and I can quite understand Mr Koronai deciding not to follow it for that reason. Nevertheless, I consider Mr Andrew did a good job in his interviews and that the taint of bias affects his conclusions but does not in any way detract from the interviews which he conducted. The interviews he conducted with witnesses were much better than those by the Vanimo Sex Scandal Committee in that he interviewed a wider number of people and he was able to separate hearsay evidence from direct, first-hand evidence.

COSTS

I award costs to the plaintiffs against the second defendant. I do not think that it is appropriate to apportion part of the costs against the National Public Services Commission. Mr Jerewai has asked that I fix the costs and to this end has produced a bill of costs. I do not think that it is appropriate in a long and contested case. It is sometimes done in a motions matter where the costs are small, the motions judge knows the length of the matter and the difficulty, and it saves the parties the time, trouble and expense of trying to agree on costs, and if that fails, of having a bill prepared and taxed.

The costs in this case will thus be agreed or taxed. On taxation I direct the Registrar that it was not necessary for two court files to be opened for each plaintiff, the first to obtain an interim injunction and the second to apply and obtain judicial review. These separate applications should have been made in the one cause, that is, in the one file.

I give a final direction. As a result of my orders, the Departmental Head is at liberty to recharge these plaintiffs. I direct that they be not charged until any legal costs owing to them under this judgment are paid. I also reserve liberty to apply in case this direction (or any of my orders) present any unforeseen practical difficulties.

Findings of guilty of disgraceful and improper conduct quashed

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Lawyer for the plaintiffs: Alois W Jerewai.
Lawyer for the respondents: Leo Au, State Solicitor.