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Application of Christopher Haiveta [1998] PGNC 109; N1783 (10 November 1998)

Unreported National Court Decisions

N1783

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 550 OF 1998
APPLICATION OF CHRISTOPHER HAIVETA

Waigani

Woods J
2 November 1998
10 November 1998

JUDICIAL REVIEW - application for leave - A Commission of Inquiry - implications - what is affected - scope of review - no basis for leave to review.

Counsel

G Sheppard for the Applicant

J Kawi for the State

10 November 1998

WOODS J: This is an application by the Plaintiff under Order 16 Rule 3 of the Rules of the National Court for leave to seek judicial review of the Further Report of the Sandline Commission of Inquiry. The applicant is seeking certain declarations concerning Reference number 10 of the Commission, including that the term of reference 10 is unconstitutional, and declarations that in making adverse findings against the applicant the Commissioners breached the minimum requirements of natural justice. The applicant is seeking a order to quash the Further Report.

Term of Reference No 10 states:

Whether any secret commission or improper payments were made or other improper advantage given to any person in Papua new Guinea or elsewhere in relation to the Sandline Contract and if so by whom were the commissioner or payments made or advantage given and by whom received.

In September 1998 the Sandline Commission was constituted and in due course undertook investigations and received evidence and heard submissions under their terms of reference and produced a Report to the Prime Minister. However this Report did not include the investigation under Term of Reference 10. This term was then the subject of separate hearings and then the Commissioners produced a Further Report. And that further report contained the following:

In all the circumstances the Commission suspects that Chris Haiveta stood to gain personally from the Sandline Contract. It suspects he received a corrupt and improper payment, but given the seriousness of such a finding and the consequent need for certainty, the Commission is unable to come to a conclusive finding that Mr Haiveta received such a payment on that evidence alone.

The suspicion however was confirmed when a subsequent piece of evidence came to light. That was the evidence that Mr Haiveta bought a house in Port Moresby and a part of the payment was made in Australia with the funds from an account in Switzerland. Mr Haiveta fought tooth and nail through his counsel to stop this evidence going in by cross-examining the Investigating Officer Mr Palmer at length. The basic evidence was not destroyed by the lengthy character assassination and English language gymnastics only confirmed the evidence. We found Mr Palmer to be frank and truthful. Despite the attacks upon him, nothing we heard damages his good character. The Commission has subsequently received bank documentation further confirming the transfer of funds of which Mr Palmer gave evidence. This transaction occurred some three months before the Sandline Contract saga. Nevertheless the Commission believes that it may have been connected to that contract... The Commission has reached the irresistible conclusion that the money Mr Haiveta transmitted from Switzerland was a corrupt and improper payment.

The above are the main features of the application by the Applicant.

The principles of law applicable to an application for leave for judicial review are well settled. See the case Ila Geno & Os v The State [1993] PNGLR 22. The tests are:

Does the applicant have sufficient interest

Does the applicant have an arguable case

Has there been undue delay.

With respect to standing the applicant is clearly mentioned in the Report, he was a person granted the right to be represented at the formal hearings, and he was mentioned in the Report as been suspected of having committed acts which are by their nature may be of a criminal nature. So the applicant satisfies this test.

With respect to delay the Further Report was made on 28th September 1998 and was tabled in Parliament the following day. This application was filed on 12th October. There has been no undue delay.

Whether there is an arguable case is the substantive matter to be considered.

Judicial Review is being sought of a Commission of Inquiry which has completed its inquiry and has been disbanded and is therefore functus officio, no longer exists. And its report has been forwarded to the relevant authorities and any further action on the report requires relevant bodies to do something, the Commission itself takes no further part in the matters inquired into. So how can such a body be amenable to judicial review when it no longer exists and it has in reality done nothing, merely collated a lot of evidence and data into a report.

I realise that the application before me to-day is only an application seeking leave for judicial review. So it is not incumbent on me to analyse the matter in detail, that comes when the review itself is heard. I am only concerned with the likelihood of a breach of human rights, and whether there is an arguable case. But this does not mean that leave for judicial review should be almost automatic and then peruse the matter in detail at the full review.

A Commission of Inquiry of this kind does not directly make orders or directly affect people’s rights such as sack or demote a public official, or take away a licence to operate a business or suchlike, or affect interests in land, or make tax assessments. A Commission like this merely inquires and collates information. Of their nature a Commission of Inquiry may be critical of people involved in the matter being inquired into but they do not convict or sue, that is left to other bodies based on the material and facts that may come to light during the inquiry. So for example this body is different in effect than the authority being considered in the case In the matter of the Director of Civil Aviation [1982] Unreported N381 referred to where a licence to operate an aircraft was involved and in other cases where the appointment or removal of senior government officials was involved

On the suggestion that the Commissioners were only empowered to make one report it is noted that the Commissioners issued their report in two stages, the Interim Report with the note that the completion of a further term of reference had been delayed because of a reference to a judicial authority, and the Further Report to complete the investigation into all the matters referred to the Commission. So it was clear that the Interim report and the Further Report are all part of the one report as required by the Act and the appointment.

On the nature of the Reference in Term of Reference 10 the terms of reference of a commission of inquiry are a matter of Executive decision and can be very wide if that is the requirement of the public interest of the people of Papua New Guinea.

Of course it is quite clear that persons implicated in matters being inquired into have an obligation or responsibility to assist such an inquiry, this is no more than the responsibilities and obligations placed on all citizens by the Basic Social Obligations under the Constitution to be open in their dealings and to respect the Courts and the bodies set up to investigate and resolve disputes and protect the interests of the Nation as a whole and all citizens must be answerable for their actions if their actions are relevant to a matter being investigated or may have affected others in the society. This court should be very wary of interfering with Commissions of Inquiry otherwise one could find an excuse to interfere with any such inquiry and thus negate the rationale for such an inquiry.

With respect to the matter being inquired into in this Inquiry the applicant was clearly a senior Government elected official involved in the matter being inquired into. Because of his very senior position in the Government at the time he clearly had an obligation to the Commission to be frank and give advice and evidence about any matter raised and investigated by the Commission - this is an obligation and responsibility of high office which unfortunately is not recognised by many people in this day. Too many people in high office are very quick to raise the human rights granted them in the Constitution but are quite prepared to ignore the responsibilities and obligations imposed on all citizens by the same Constitution such as to protect the interests of the Nation as declared in the Basic Social Obligations even when, as the applicant has done when he became a Member of Parliament, they have publicly sworn to uphold the Constitution. The Constitution section 27 refers to the responsibilities of high office and this may mean your personal financial status may appear relevant and could be ancillary to a public inquiry. And again I repeat this may be a burden on holders of high office, your personal status may be very relevant and there may be limitations to your right to privacy if the public interest and concern is involved. The Commission had suggestions and evidence from a Commission investigator before it which raised questions. The Commissioners had to consider the matters, the applicant was asked to assist, and by the very nature of his office he was obliged to assist not to hinder. He was well aware that he was involved in the matters being inquired into, and he was given ample opportunity to assist, he was clearly represented as it was noted that his counsel conducted extensive cross-examination of a witness. As the report noted, he did not give evidence in reply although he had every opportunity........ In the eyes of the Commissioners he was not as co-operative as they were entitled to expect from such a high government official.

So even if principles expounded in the case Bradshaw v Kyle [1995] 15 WAR 327 were relevant the facts of that case are quite different as the applicant there was not afforded an opportunity to be present. And the applicant there was not bound by the obligations placed on all citizens in this jurisdiction by the Constitution.

The case Gaisford v Hunt & Anor [1996] from the Australian Capital Territory is a completely different situation from the one before me here. In that case comments were made concerning the applicant even before the inquiry had considered certain matters which may have related to the applicant. In Amadio v State & Os [1992] PNGLR 218 the decision sought to be reviewed was concerned with a right to prospect for minerals.

In a number of cases referred to such as Mahon V Air New Zealand [1984] 3 AER 201, the point was that persons had not been given an opportunity to answer or to rebut findings. However as I have already stated, the applicant here was a major figure in the matters being inquired into, he had a direct obligation and responsibility to assist, and in spite of all the opportunity presented to him to assist he failed to give evidence and resisted the attempts by the Commission to inquire into matters.

All this is evident from a brief perusal of the Report, so it is not a matter of detailed consideration. And as I have already noted whilst the points referred to were contained in a Further Report it was clear at all times that when the initial Report was presented there was still one matter to be further considered which would be embodied in a Further Report to be added to the main Report. I find no confusion or irregularity over the fact of the Report and the Further Report which should warrant leave for review.

As I have already stated I am only considering leave, whether there is an arguable case. Thus in Geno v PNG [1993] PNGLR 22 ‘If on a quick perusal of the material then available the court (that is the judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief.”

But considering the nature of the Commission of Inquiry, and the opportunity for the applicant to appear and the way he utilised this opportunity, and the obligations and responsibilities imposed on all citizens by the Constitution and specifically on the applicant to such an Inquiry, I can find no basis for any leave to be granted to review the Report of the Commission. The Commission was directed under fairly wide terms of reference with specific implications by virtue of the subject matter, and has conducted it investigations, and given people wide opportunity to appear and assist, and has made its Report in the Interim Report and the Further Report.

I dismiss the application.