Unreported National Court Decisions
N1512
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS NO 294 OF 1996
IN THE MATTER OF LEADERSHIP TRIBUNAL
TIMOTHY BONGA - PLAINTIFF
AND
HON. JUSTICE MAURICE SHEEHAN
MR MARCUS BAYAM - SPM
MR HIMSON WANINARA - SPM - FIRST RESPONDENTS
AND
THE STATE - SECOND RESPONDENT
Waigani
Kapi DCJ
12 February 1997
4 March 1997
JUDICIAL REVIEW - Leadership Tribunal, determination by - Statement of Reasons by the Ombudsman Commission, the meaning and nature of - whether Statement of Reasons constitute evidence against a leader - Whether the decision-making process is defective when there is no evidence.
CONSTITUTIONAL LAW - Organic Law on the Duties and Responsibilities of Leadership, whether evidence collected by Ombudsman Commission, may be admitted in a Leadership Tribunal, s. 21 (6) - Power of Leadership Tribunal to conduct Independent inquiry under s. 29.
Counsel
S Soi for the Plaintiff
J Kawi for the Respondents
4 March 1997
KAPI DCJ:  Mr Timothy Bonga (hereinafter referred to as the Plaintiff) was found guilty of offences relating to misconduct in office under the provisions of Organic Law on the Duties and the Responsibilities of Leadership (hereinafter referred to as the OLDRL) by the Leadership Tribunal consisting of The Hon. Mr Justice Sheehan, Mr Macus Bayam and Mr Himson Waninara (hereinafter referred to as the Tribunal). The Tribunal subsequently recommended the dismissal of the plaintiff as Chairman of the Lae City Authority.
The plaintiff filed an application for judicial review of this decision under O 16 of the National Court Rules. Leave for judicial review was granted by Salika J on 13 August 1996.
Initially, the matter came before me for hearing on 16 December 1996. When counsel made opening remarks on the nature of the issues to be dealt with, it became clear to me that the transcript of the proceedings would be required. I was informed by counsel that the proceedings were recorded but that no transcript had been produced. Both counsel agreed that the matter should not proceed until a transcript of the proceedings was made available. The matter was adjourned for this reason.
The transcript has been made available and the matter resumed before me on 12 February 1997. Both counsel have had time to peruse the transcript and agreed to admit it as representing accurate records of the proceedings of the Tribunal.
In order to appreciate the issues, it is necessary to set out fully the circumstances which prompted this application.
Under OLDRL if the Ombudsman Commission (hereinafter referred to as the Commission) is satisfied that a leader is guilty of misconduct in office, it may refer the matter to the Public Prosecutor for his consideration under s. 27 (1) of OLDRL together with the statement of  reasons by the Commission.
If the Public Prosecutor considers that the matter should proceed further, he may refer the matter to the appropriate tribunal for prosecution together with the statement of the Commission (s. 27 (2) of OLDRL).
In the present case, the procedure outlined above was followed and the Tribunal was appointed under s. 27 (7) (e) of OLDRL to hear counts relating to misconduct in office.
When the Tribunal convened on 11 March 1996, Mr Kuvi, the prosecuting counsel, formally referred 16 separate allegations of misconduct in office.  Mr Kuvi presented these counts in a document titled “Reference By The Public Prosecutor Of A Matter Pursuant To Section 27 (2) Of The Organic Law On The Duties And Responsibilities Of Leadership To The Tribunal Appointed Under Section 27 (7) (e) Of The Law To Investigate And Determine Alleged Misconduct In Office By Mr Timothy Bonga” dated 5 February 1996 and signed by the Public Prosecutor (see Appendices 2 to the Decision of the Tribunal - Annexure marked “G” referred to in the affidavit of Mr Soi sworn 20 June 1996).
Mr Kuvi also referred the statement of reasons by the Commission (see Annexure marked “A” in affidavit of Mr Soi sworn on 20 June 1996) together with a document titled “Book of Exhibits Number 1 - 74” (see Annexure marked “B” in affidavit of Mr Soi sworn 20 June 1996).
At the hearing before the Tribunal, counsel for the plaintiff raised a number of preliminary issues which were ruled upon by the Tribunal. It is not necessary to refer to all of them. For the purposes of the matter which has become the subject of the hearing before me, counsel for the plaintiff objected to the referral or tendering of the statement of reasons  by the Commission. One of the grounds relied upon was based on the principles of natural justice. In brief, counsel for the plaintiff argued that the statement of reasons contained prejudicial material, namely, certain findings made by the Commission that the plaintiff was guilty of misconduct in office. Counsel  submitted that these adverse findings against the plaintiff if admitted in the Tribunal might influence the members of the Tribunal in their deliberations.
The Tribunal ruled on this particular objection on 12 March 1996. It dismissed the objection on the basis that S 27 (2) of OLDRL required the statement of the Commission to be referred to the Tribunal. It further ruled that this was only a procedural requirement and the Tribunal will determine the misconduct counts based on the evidence that will be brought before it.
Subsequent to this ruling on 12 March 1996, counsel for the plaintiff made a further objection to the referral or tendering of Book of Exhibits number 1-74 which contained copies of documents and statement of witnesses which were obtained by the Commission in the course of its investigation. Counsel based this objection on a number of legal grounds.  The ground which has been taken up in the application before me is that the only document which can legally constitute the statement of reasons that may be referred to the Tribunal is the opinion of the Commission which is contained in the document titled statement of reasons.  Counsel submitted that any evidence upon which the Commission may based its opinion is not admissible and need not be referred to the Tribunal.
The Tribunal after a short adjournment dismissed the objection.  It ruled that the exhibits were part and parcel of the statement of reasons and is required by OLDRL to be placed before the Tribunal.  It further ruled that the statement of reasons with the exhibits could not constitute evidence.
After the preliminary objections were dealt with, the Tribunal then proceeded with the hearing.  Counsel for the plaintiff advised the Tribunal that the plaintiff had responded in writing to each of the counts.  This document was handed up (see Annexure marked “D” referred to in the affidavit of Mr Soi sworn 20 June 1996).  The plaintiff denied all the facts with the exception of counts 12 and 13. In the same document the plaintiff also responded to all the exhibits attached to the statement of reasons.  In brief the plaintiff denied all the charges as well as the facts apart from the admissions.
At this stage, the prosecutor had every indication of what he had to prove.  Mr Kuvi indicated to the tribunal that he would call about ten or eleven witnesses to prove his case against the plaintiff.
Significantly on 13 March 1996, Mr Kuvi then indicated to the Tribunal that all the evidence he intended to call is in the statement of reasons and there was no need for him to call any evidence. As a result of the position taken by the prosecutor, counsel for the plaintiff persistently raised the issue of the admissibility of the statement of reasons together with the exhibits.  The final position taken by the Tribunal on this issue appears in its published ruling (see page 3 of Ruling of Tribunal (2) - Appendices 3 of the Decision of the Tribunal contained in Annexure marked “G” referred to in the affidavit of Mr Soi sworn 20 June 1996):
“There has been objection to the Tribunal accepting the Statement of Reasons.  We have already ruled on that.  We are obliged by statute to have regard to it.  We have already said it comprises the commentary and documents on which charges are based though none of these documents become evidence or the conclusion accepted until determined by this Tribunal.  To make doubly sure, we say that the Statement of Reasons is taken as the opening Summary of the Prosecution story.  The prosecution explanation of the documentary evidence and facts disclosed in the exhibits.  It is perhaps the invitation to the Tribunal to make the same conclusions as the Ombudsman Commission and the Prosecution on the same proffered evidence.”
The prosecution did not call any evidence apart from the statement of reasons.
The plaintiff on the other hand filed an affidavit sworn 28 March 1996 (see Annexure marked “F” referred to in the affidavit of Mr Soi sworn 20 June 1996).  He was also cross-examined by Mr Kuvi and questioned by Members of the Tribunal.
The Tribunal took time to consider the matter and handed down its decision on 29 April 1996.  It found the plaintiff guilty of counts 1- 4, 7 - 16 and not guilty in respect of counts 5 and 6. The counts in respect of which the plaintiff was found guilty, the Tribunal  recommended penalty of dismissal from office.
In the originating summons, the plaintiff has applied for an order in the nature of Certiorari to quash the decision of the Tribunal on the basis (1) that the Tribunal erred in law in wrongly admitting and accepting the statement of reasons of the Commission together with the exhibits as evidence (2) that the Tribunal breached the principles of natural justice in admitting the statement of reasons containing prejudicial statements by the Ombudsman Commission thereby influencing its decision.
STATEMENT OF REASONS - CAN IT CONSTITUTE EVIDENCE?
In its decision the Tribunal said:
“Though the Leader initially gave notice of requiring witnesses, by notice in writing he subsequently advised the Tribunal that he no longer wished to call witnesses and would reduce his own evidence to writing.
There was no challenge made by the Leader as to the validity of the documents exhibited.  That is to say, while the allegations statements or conclusions to be drawn from them were in issue, no challenge was made that the letters, documents or statements that were exhibited, whether originals or photocopies, were not actual letters documents or statements written, created or made at the time stipulated in them.
Those letters documents have been examined by the Tribunal and have accepted as evidence in these proceedings.”  (emphasis added).
The Tribunal was able to come to this conclusion primarily on the basis of the documents contained in the book of exhibits.  The question then arises whether the Tribunal was correct in treating the documents in the exhibits as evidence.
Counsel for the plaintiff has submitted that the onus is on the Public Prosecutor to prove the charges against the leader and he did not call any evidence.  He submitted that the Tribunal made an error of law in treating the statement of reasons as constituting evidence.  I understand that the attack on the decision of the Tribunal is based on this defect, that is to say, the decision was reached by taking into account matters which in law could not constitute evidence.  It is submitted that a decision in those circumstances is unreasonable or is abuse of power resulting in the Tribunal exceeding its jurisdiction.  Support for this proposition can be found in Wednesbury case [1948] 1 K B 223 and Council of Civil Service Unions & Others v Minister for the Civil Service [1985] AC 374.
Counsel for the respondents at no point contested the principles of law under which this judicial review is sought.  He, however, submitted that the Tribunal is not bound by legal formalities or the rules of evidence pursuant to s. 27 (4) of OLDRL and therefore the Tribunal was entitled to rely on the exhibits which were part of the statement of reasons.
What then is the nature of statement of reasons and its purpose under s. 27 of OLDRL?
Section 27 (1) refers to a “statement of its reasons for its opinion”.
This statement of reasons deal with the subject matter of which the Commission must be satisfied.  That is, it must be satisfied that the leader is guilty of misconduct.  In law, the statement must therefore consist of (a) a clear statement of the particulars of misconduct alleged (b) an “opinion” that the leader is guilty of the misconduct and (c) the “reasons for its opinion”.
The Commission must of course come to this opinion on the basis of its investigation. In its reasons it must make sufficient reference to the evidence to support its opinion. Nevertheless, the statement of reasons remains an opinion in law. It does not and cannot constitute evidence against the leader.
The purpose of the statement under s. 27 (1) is to give the Public Prosecutor a basis to consider if he should proceed further with the matter.
Now for the purposes of considering whether he should proceed further with the matter, no doubt the Public Prosecutor will call for all the evidence the Commission has collected which form the basis of the opinion. Whether or not there is sufficient evidence to prove the charges and what evidence he is required to call before a tribunal is a different matter altogether. The Public Prosecutor may require further evidence. That of course relates to the proof of the charges before the Tribunal.
Section 27 (2) makes reference to “the statement of the Ombudsman Commission”. That merely refers to the opinion and cannot mean the evidence that the Commission obtained in the course of its investigation under s 21 of OLDRL.
The purpose of the statement of the Commission before the Tribunal is simply to indicate the nature of the allegations against the leader and to indicate the nature and the direction of the inquiry may take.
Having regard to all the matters I have referred to, the statement of reasons (opinion) of the Commission does not and cannot include the evidence obtained during the course of its investigation. To adopt the contrary view is to effectively admit the evidence collected by the Commission. Such an interpretation would prevent the Tribunal from making its own independent inquiry into the allegations of misconduct.
This conclusion is consistent with the powers of the Tribunal under s. 29 of OLDRL. These are the same powers the Commission has in the investigation of an allegation of misconduct against a leader. This clearly envisages a situation where counts are disputed, as in this case, the Tribunal is given these powers to inquire into the evidence that may support the counts. It simply cannot take the opinion of the Commission as constituting the evidence against the leader.
The Tribunal in the present case should have summoned all witnesses to give evidence in relation to all the documents set out in the book of exhibits pursuant to the powers of investigation given under s. 29 of OLDRL. The Tribunal failed to carry out any such inquiry.
The only reported case which may have some relevance to the issue before me is In re James Eki Mopio [1981] PNGLR 416. This was a reference made to the Supreme Court for an opinion on what is the proper standard of proof to be applied in leadership tribunals. In dealing with that issue the Court said at 420:
“The Leadership Tribunal is also under a duty to act judicially and is required to act in compliance with the principles of natural justice. It follows from this that the decision of the Tribunal must accordingly be based on evidence which is reasonably capable of sustaining it.”
The Court referred to English and Australian cases and then continued:
“Implicit in that well established principle is the requirement that findings of material fact of a statutory tribunal must ordinarily be based on logically probative material and the requirement that the actual decision of such a tribunal must, when relevant questions of fact are in issue, ordinarily be based upon such findings of material fact and not on mere suspicion or speculation.”
Inherent in this passage is the requirement that evidence must be called to prove the counts against the leader. Having regard to the very serious nature of leadership offences as acknowledged in James Mopio’s case (supra), it can hardly be accepted that the provisions of OLDRL intended that the Tribunal would treat the statement of the Commission as sufficient basis for making serious findings of fact without carrying out its own inquiry. A tribunal can only make findings of fact in such serious matters after making a proper inquiry in accordance with s. 29.
A number of tribunals have reached the same conclusion. In the matter of the Public Prosecutor and The Honourable John Nilkare the Tribunal consisting of Mr Justice Woods, Mr Seri Seneka and Mr Richard Koronai dealt with a similar objection. At page 2 of their decision (dated 27 June 1996) they said:
“There was a preliminary objection to the acceptance by the Tribunal of the statement of reasons from the Ombudsman Commission. It was submitted that the statement of reasons showed unnecessary bias on the part of the Commission and that this was unfair to the Leader at this stage of the Inquiry and could be prejudicial to the Leader. We ruled that the Organic Law clearly stated in Section 27 (3) that the Commission may refer the matter together with a statement of its reasons for its opinion to the Tribunal. We noted that the statement of reasons is not evidence and we must make up our minds on the basis of the evidence.”  (emphasis added).
The Tribunal then proceeded to hear the evidence.
In the matter of Public Prosecutor and the Hon. Jeffrey Balakau the Tribunal consisting of Mr Justice Andrew, Mr Posain Poloh and Mr Francis Tenge reached the same conclusion (decision dated 11 December 1996) at page 5:
“We now consider each category of the individual charges. We note that the statement of reasons by the Commission is not evidence in itself but where those reasons are uncontested or supported by the evidence we make reference to them.”  (emphasis added).
In my view this issue is put beyond doubt by s. 21 (6) of OLDRL:
“Except on the trial of a person for perjury in respect of his sworn testimony, no statement made or answer given by that or other person in the course of any inquiry by or any proceedings before the Commission or other authority is admissible in evidence against any person in any court or at any inquiry or any other proceedings, and no evidence in respect of proceedings before the Commission or other authority shall be given against any person.”  (emphasis added).
The book of exhibits in the present case contains evidence produced before the Commission during the course of its investigation. This provision clearly prohibits the admissibility of such evidence in that form in the Tribunal. In the Matter of a Reference by the Public Prosecutor and in the Matter of James Eki Mopio the Tribunal consisting of Mr Justice Greville Smith, Mr Kwalimu Lofena and Mr Isaac Wartovo applied this provision and noted it in their decision (dated 9 December 1981) at page 3:
“It is convenient to mention at this point that certain objection was taken by counsel for Mr Mopio to the admissibility of evidence. These objections were based upon the provisions of Section 21 (6) of the Organic Law on the Duties and Responsibilities of Leadership and were all upheld.”
It is not clear from the decision whether the evidence objected to was the evidence taken before the Commission. But from reading the whole of the decision, it could only be a reference to evidence collected by the Commission.
In my view, the Tribunal in the above named case was correct in not admitting such evidence pursuant to s. 21 (6). Nevertheless, the Tribunal proceeded to hear witnesses. Although the Tribunal did not say so in so many words, the rejection of the evidence before the Commission pursuant to s 21 (6) did not prevent the Public Prosecutor from calling the same witnesses to give the same evidence before the Tribunal pursuant to s. 29 of OLDRL.
With respect, this was a harmonious interpretation and application of s. 21 (6) and s. 29 and I would adopt it. In the present case, the book of exhibits are not admissible under s. 21 (6) but the prosecutor was entitled to call the same witnesses to give evidence before the Tribunal under s. 29.
It is in the calling of evidence pursuant to s. 29 that s. 27 (4) is applicable. Section 27 (4) is not relevant to the question of determining the nature and the purpose of statement of reasons under s. 27 (1) and (2).
In coming to the conclusion that there was evidence in the statement of reasons by the Commission, the Tribunal fell into error. In fact this decision is contrary to the earlier ruling by the Tribunal of the true nature of statement of reasons and the exhibits. In its ruling (see Appendices 3 of Judgment of Tribunal (the second ruling) - Annexure marked “G” referred to in the affidavit of Mr Soi sworn 20 June 1996) at page 3 the Tribunal said that the statement of reasons cannot constitute any evidence. I have already set out this passage above.
In essence, the statement of reasons is the opinion of the  Commission and at the highest it is the case the prosecution proposes to prove against the leader. It is properly to be regarded as the opening statement of the prosecution case. The Tribunal fell into error when it accepted the submission of the prosecutor in the same ruling:
“The Prosecution says that these documents are prima facie at least real documents and if accepted they form the Prosecution case without the need to call anyone to produce them. They speak for themselves.
If that is to be the Prosecution case then the question must be asked is what does the Leader wish to say about that evidence. Does he wish to call witnesses, does he wish to challenge any of the documents produced or cross examine any witnesses?”
Where a leader contests the counts as in the present case, the statement of reasons with the exhibits cannot in any way constitute the evidence that is required to prove the counts. It was the duty of the Tribunal to enquire into the allegations and the Prosecution to call the evidence to prove the counts. The Tribunal fell into error when it expected the plaintiff to express a view about the evidence or to indicate whether he wished to cross examine any witnesses when there was no evidence put before it.
In my view, the decision not to call any evidence by the prosecutor as well as the failure by the Tribunal to conduct an inquiry into all the allegations in accordance with s. 29 of the OLDRL was fatal. The practical result of this failure is that there was no evidence put before the Tribunal to prove any of the counts. If no other evidence was brought before the Tribunal to support any of the counts, a verdict of guilty in respect of those counts would be unreasonable so as to exceed jurisdiction and that would render the verdicts a nullity.
However, that is not the end of the matter in this case. There was other evidence. The plaintiff filed a lengthy affidavit and he was cross-examined at length by the prosecutor and questioned by the various Members of the Tribunal. It is necessary to examine whether there is any evidence which would support any of the counts. In carrying out this exercise, I need not be concerned with counts 5 and 6 as the plaintiff was found not guilty in respect of them.
When the plaintiff responded to all the counts in writing, he admitted the facts in respect of Count 12 and 13. Further, at the hearing on 12 March 1996 counsel for the plaintiff indicated (at page 50 of the transcript):
“Mr Soi: All denied except counts 7 and 8 and counts 12 and 13.”
It follows from this that the particulars alleged in respect of these counts were admitted by the plaintiff and therefore the admissions themselves provided the proof of those matters. The verdicts and the penalties in respect of them cannot be disturbed.
Now I will examine the other counts. The question which I have to determine is not whether there was any credible evidence nor was there sufficient evidence to the required degree to sustain a verdict of guilt. That is not the basis of the present application. The plaintiff's case has been presented on the basis that there was no evidence at all to prove any of the counts.
Furthermore, there was no argument before me that the Tribunal made any error of law in relation to the essential elements of misconduct offences in the present case. I have not examined these issues in the present case.
COUNT 1
This count is laid pursuant to s. 21 (1), 27 (2) and 27 (5) (b) of the Constitution. The allegation was that the plaintiff with two other Pangu Ministers were asked to stepped down as Ministers by the then Prime Minister. That after they stepped down they conspired to write a letter in which they made unreasonable demands for money for stepping down as Ministers. The allegation was that these demands were made to take advantage of the vote of no confidence motion that was proposed by the Opposition.
In my view the essential evidence in respect of this count was the letter dated 26 June 1990 and all the surrounding circumstances. The evidence of this letter and other relevant documents was the subject of the affidavit of the plaintiff and cross-examination by prosecuting counsel and questions by the Members of the Tribunal. I find that there was evidence before the Tribunal on this count.
COUNT 2
The essential evidence required to prove this count was again the letter of 26 June 1990. As I have pointed out before this letter became part of the evidence through the affidavit of the plaintiff and detailed cross-examination by the prosecutor as well as questions by the Members of the Tribunal regarding the demand for K10,000.00. I find there was evidence before the Tribunal on this count.
COUNT 3
This count gave six particulars as the basis for misconduct. The first is that the plaintiff wrote a letter to the Prime Minister requesting K120,000.00 from the Prime Minister Discretionary fund on behalf of “Asar Business Group” to enable the group to purchase a cattle ranch at Leon Plains Markham Valley.
Secondly, it further alleged that the plaintiff provided false information in that the business group referred by him in the said letter was non-existent, and the cattle ranch allegedly being purchased by this non-existent business group was not for sale.
Thirdly, that the plaintiff misrepresented that a 16 year old boy was a principal when in fact he had no involvement at all.
Fourthly, that when he wrote the letter he knew there was a motion of no confidence was before the sittings of the Parliament commencing on 3 July 1990.
Fifthly, that when the plaintiff wrote the letter he was doing this on behalf himself and the ex Ministers (Hon Peter Garong, Hon. Galen Land Hon. Melchior Pep) and that he was in negotiation with the Leader of the Opposition to form the new Government.
Sixthly, that the plaintiff wrote this letter after receiving a reply from the Prime Minister that he could only get K50,000.00.
This count is framed in such a way so that the combined effect of these particulars would constitute misconduct in office. An essential part of this allegation is that the plaintiff provided false information to the Prime Minister about the business group, the sale of the ranch and a 16 year old boy. The plaintiff acknowledged the letter but denied that he provided any false information. The prosecution did not call any evidence to prove the allegations of falsity. The only evidence on this was the sworn evidence of the plaintiff in the affidavit and his evidence given in the Tribunal. Without this evidence the Tribunal could not have reached a verdict of guilt. This would be an unreasonable decision resulting in a nullity.
COUNT 4
The allegations made in this count are similar to those in count 3 except that this time the allegation is that he wrote a similar letter to the Minister for Finance. The basis is the same as count three, namely the provision of false information. As I have pointed out the plaintiff denied all these claims and the prosecutor did not call any evidence to prove these matters. In the circumstances the verdict of guilty was unreasonable and therefore a nullity.
COUNT 9
This count alleges that the plaintiff negligently omit from his 1987/88 annual statement the details required to be completed by the Commission. This particular statement came into evidence through cross-examination of the plaintiff by the prosecutor and the Members of the Tribunal. All the correspondence and the actions taken by the Commission was introduced into evidence in cross-examination. I am satisfied that there was evidence before the Tribunal on this particular count. I would not disturb this finding.
COUNT 10
This count alleges failure on the part of the plaintiff to give details as requested by the Commission in relation to annual statements for the periods  16 July 1985-15 July 1986; 16 July 1986-15 July 1987; and 16 July 1987 - 15 July 1988. Evidence in relation to these statements were adduced through the cross-examination of the plaintiff. There was evidence before the Tribunal. I would not disturb this finding.
COUNT 11
This count alleges failure on the part of the plaintiff to co-operate with the Commission. The evidence in relation to this count was also adduced through cross-examination of the plaintiff. I would not disturb this finding.
COUNT 14 AND 15
Count 14 alleges failure on the part of the plaintiff to comply with directive issued by the then Minister for Education to acquit school fees subsidy received during 1989 to the value of K23,021.44.
Count 15 is the same offence as in count 14 except that this count relates to the failure by the plaintiff to acquit school fees subsidy for 1990 to the value of K17.748.85.
The facts relating to these counts can be found in the affidavit filed by the plaintiff and cross-examination of the plaintiff. I would not disturb the verdicts in respect of these two counts.
COUNT 16
This count alleges that the plaintiff failed to comply with the directions given by the Commission in respect of acquittal of EDF funds for disbursement in 1990. The plaintiff in his affidavit explained that he acquitted these funds through the Administrative Services. No evidence was called by the prosecution to affirm or reject this explanation. The plaintiff was further cross-examined and he gave the same explanation.
The direction given by the Commission to acquit the funds to it is another matter. In cross-examination the plaintiff's attention was drawn to the direction given by the Commission (Ex 73). The plaintiff said he could not remember seeing this direction in the National Gazette. It is immediately clear from Ex 73 that the direction given by the Commission relates to NDF funds for 1988 and 1989. There is no evidence that the plaintiff did not acquit such funds. The subject matter of count 16 relate to the acquittal of 1990 funds. There is no evidence that there was a similar direction in respect of EDF disbursements for 1990 and that the plaintiff failed to acquit them. The Commission was not called to give evidence in this respect. I find that there was no evidence to support count 16. I would quash the verdict.
THE PREJUDICIAL STATEMENT OF REASONS MAY INFLUENCE THE TRIBUNAL
This ground can be briefly dealt with. There is no doubt that the principles of natural justice are applicable to leadership tribunals. The statement of reasons by the Commission contains conclusions which are prejudicial to the integrity of the leader. However, if the purpose of the statement of reasons as I have found are clearly understood, no question of bias or influence will arise. That is to say, the statement of reasons simply makes allegations which must be proven before the tribunal. It simply outlines the case against the leader and it cannot be used in any other way. The proof of the charges against the leader does not depend on the statement of reasons. The Tribunal's inquiry is an independent and a new inquiry and it must reach its own decision based purely on its own inquiry. I would dismiss this ground of review.
In summary I would quash the verdicts of guilty in respect of counts 3, 4 and 16 and would not disturb the findings of the Tribunal in respect of counts 1, 2, 9, 10, 11, 14 and 15. I have already indicated that the counts 7, 8, 12 and 13 cannot be disturbed on the basis that the plaintiff admitted the facts.
Lawyers for the Plaintiff: Soi & Associates
Lawyers for the Respondents: Solicitor-General