Unreported National Court Decisions
N829
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
GERALD SIGULOGO
V
THE LEADERSHIP TRIBUNAL
AND
THE STATE
Waigani
Amet J
12-13 March 1990
19 March 1990
JUDICIAL REVIEW  - Application for - Proposed grounds of review on errors of law - No merits re arguable case - No inconsistency between Organic Law s 27(4) and Commission of Inquiry Act s 13.
LEADERSHIP TRIBUNAL - Charges under Organic Law on duties and responsibilities of leadership - Criminal law principles of demurrer inapplicable - Totality principles of punishment not applicable to penalties under Organic Law.
Held
(1)      The application for leave for Judicial Review has no merit.
(2)      Charges under the Organic Law on duties and responsibilities of leaders and the Constitution were valid and not bad for duplicity.
(3)      The procedure of demurrer is inapplicable to charges for misconduct under the Organic Law or the Constitution.
(4)      Section 27(4) of the Organic Law is not inconsistent with s 13 of the Commission of Inquiry Act.
(5)      The criminal penalties totality principles are in applicable to penalties under Organic Law for leadership offences.
Cases Cited
See Dr. Rose Kekedo v Burns Philp (PNG LTD) and ORS. (Unreported Supreme Court Judgement No Sc 373)
Legislation Cited
The Organic Law on Duties and Responsibilities of Leadership.
The Commission of Inquiry Act
Application for Judicial Review
This is an application made pursuant to O 16 r 3 of the National Court Rules seeking leave to make application to the National Court for Judicial Review of several decisions and recommendation of a leadership tribunal.
Counsel
N. Kirriwom, for the applicant.
V. Noka with I Owusu, for the respondents.
Cur adv vult
AMET J:  This is an application under O 16 r 3 of the National Court Rules seeking leave to make application to the National Court for Judicial Review of several decisions and recommendations of a Leadership Tribunal (the Tribunal) set up under s 27 of the Organic Law).
The application is a member of the National Parliament for the Kavieng Open Constituency. He was referred to the Tribunal by the Public Prosecutor for investigation and determination of ten charges of alleged misconduct in office. Nine charges were preferred under the Organic Law and one under the Constitution. He was found guilty of eight of the charges. In respect of charges 1, 2 and 3 the Tribunal recommended dismissal from office by the Head of State. In respect of five charges fines were imposed with in default imprisonment terms of one month respectively. It is from these decisions and recommendations that the applicant now seeks leave to make application for judicial review.
Order 16 r 3(5) stipulates that the Court shall not grant leave unless it is satisfied that the applicant has a sufficient interest in the matter to which the application relates. After satisfying the court the he has sufficient interest the applicant must proceed to bring the application within one of the following principles established by case authority:
(1)      That the decision-making authority has exceeded its power or jurisdiction,
(2)      Commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers.
It has also been sufficiently established that the purpose of judicial review should not be to examine the reasoning of subordinate authority with the view to substituting its own opinion, but should, be concerned not with the decision making process. See Dr Rose Kekedo v Burns Philp (PNG Ltd) and Others. (Unreported SC No SC 373).
The grounds advanced by the applicant in support of the application listed three heads of errors of law and two in relation to the severity of the penalties imposed, which can be fairly classed under the heading-decisions which no reasonable tribunal could have reached. The three heads of arguments founded on errors of law are:
(a)      By over ruling the applicant’s demurrer to charges 1, 3 and 4 and 10 as being bad in law for duplicity as the charges arose out of the same facts, it was thus unfair and unjust to the applicant’s right to a fair hearing.
(b)      By admitting into evidence the contents of the report of the Barnett Commission of Enquiry - Interim Report No 4, in contravention of s 13 of the Commission of Enquiry (Act Ch 31) and is so doing, convicted and penalised the applicant on materials that were illegally before it.
(c)      The tribunal misconstrued and erroneously applied s 27(4) of the Organic Law in that the provision neither impliedly nor implicitly empowered the tribunal to over-ride the provision of another competent and valid law, s 13 of the Commission of Enquiry Act.
I do not consider that the submission in relation to the applicant’s demurrer has merit. The charges were laid under different sections of the Organic Law and the Constitution, and were perfectly valid. I do not think that the procedure of demurrer is applicable to charges under the Organic Law or the Constitution on leaders for misconduct. They are not criminal charges. I do not consider the joinder of separate charges together was unfair to the applicant. Rather I would have thought it would be unfair to separate them and prosecute them on different occasions. I do not consider that this ground has merit.
The argument against the admission into evidence of Interim Report No 4 of the Barnett Commission of Enquiry also in my view does not have merit. With respect I consider that the ruling of the Tribunal to the objection in relation to the receipt of this report is correct. Section 13 of the Commission of Enquiry act precludes the admission into evidence, a statement or disclosure made by a party as a witness before a commission, in a civil or criminal proceeding. The Tribunal hearing is not a civil or criminal proceeding. Strictly speaking s 13 has no application to any material sought to be received into evidence by a Tribunal. Additionally, however, as the Tribunal ruled, s 27(4) of the Organic Law supercedes s 13 of the Commission of Enquiry Act, as being a superior law. Even if it weren’t, s 27(4) permits clearly the Tribunal to inform itself in any manner it thinks proper subject to compliance will the principles of natural justice. And so to rely on report of another Commission is perfectly permissible. This adequately dismisses the third purported ground of error of law.
In conclusion, the proposed arguments that the tribunal had erred in law are without merit and cannot found the grant of leave for judicial review.
The third ground relied upon in support of the application is that the penalties imposed are harsh, oppressive and manifestively excessive in their cumulative effect upon the applicant does not conform with the principles ordinarily applying to penalties in criminal cases. The applicant hasn’t submitted that the penalties imposed in each of the eight charges could not have been imposed as being without authority or wrong in law. It hasn’t been submitted that each respective penalty was inappropriate or harsh, oppressive or manifestly excessive in itself. The applicant had considerable difficulty trying to frame this argument on the basis of the cumulative effect of all of the penalties. In respect of the first three charges the penalties were recommendations for dismissal respectively. There is no cumulative effect. Each one is the highest available penalty, and any one of them suffices. Each is simply subsumed into the other. In respect of the other five charges, monetary fines were imposed. Four of them related to the one transaction and the tribunal quite correctly considered that if they were all put together in one statement of charge it might have attracted a K1,000 fine, and so the Tribunal apportioned as between the four charges an equal fine of K250 each. The applicant hasn’t argued that these fines individually taken were inappropriate nor indeed that their total effect was severe. The argument has been misconceived in my view, by combining the monetary fines with the recommendations for dismissal in relation to charges 1, 2 and 3, and trying to apply the criminal penalties totality principles, which are quite inappropriate.
A legal argument had been advanced in relation to the Tribunal making orders in default of the monetary fines of one month imprisonment, as being an error of law going to excess of jurisdiction. Counsel representing the Ombudsman Commission appearing by leave to assist the Court conceded that those five in default orders of one month imprisonment were invalid as being in excess of the jurisdiction. There is no provision in the Organic Law permitting orders of imprisonment in default of payment of fines. However, this argument wasn’t pursued to any great length because it is academic at the time of the application as the applicant had paid the fines and was not in jeopardy of going to imprisonment. The merits of this can remain to be fully argued on another occasion should it arise.
In conclusion, the arguments as to the merits of the case to be argued, in relation to grounds alleging errors of law and severity of the penalties, I do not consider have any merit. There being no other ground for granting leave I refuse leave for judicial review.
Lawyer for the applicant: Kirriwom and Company.
Counsel: Public Prosecutor
Lawyer for the respondents: V Noka and I Owusu.