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Simon, In re [2020] PGNC 20; N8189(LT) (10 February 2020)

N8189 (LT)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

THE LEADERSHIP TRIBUNAL APPOINTED PURSUANT TO SECTION 27 (2) AND 27 (7) (e) OF THE ORGANIC LAW ON DUTIES AND RESPONSIBILITIES OF LEADERSHIP

AND:
IN THE MATTER OF THE HONOURABLE JOHN SIMON MP MEMBER FOR MAPRIK OPEN and MEMBER EAST SEPIK PROVINCIAL ASSEMBLY ("the Leader"),
REFERENCE NUMBER LT.N0.1 OF 2019

BEFORE:
HONOURABLE JUSTICE NICHOLAS MIVIRI -Chairman-
HIS WORSHIP MR. MICHAEL APIE'E – Senior-Magistrate-Member-
HER WORSHIP MS. NANCY LIPAI – Senior –Magistrate-Member-

Waigani
2019: 09^th to 20^th December
2020: 10^th February

CONSTITUTIONAL LAW – Closure of case counsel assisting tribunal – No case submission by Leader – Quasi Judicial Proceeding – Due Inquiry – Question of law – Standard of Proof – beyond civil balance – not beyond criminal burden – Whether evidence by principal complainant independently investigated by Ombudsman Commission – Statement of reasons composition compiling of – Whether Ombudsman Commission obligated to investigate – Whether Ombudsman Commission investigated.

LEADERSHIP CODE – Whether evidence sufficient – Statement of reasons composition of whether investigation of Ombudsman Commission – whether reference in law – application of law – whether sufficient to call Leader to answer – effect of Natural Justice and due enquiry.

CONSTITUTIONAL LAW – Constitutional Process Election Leader Member – Constitutional process removal member – evidence insufficient to call member leader to give evidence – Four categories – 9 allegation against leader – Allegation 1 & 2 insufficient to call leader to answer – Allegation 3 & 4 insufficient evidence to call leader to answer–Allegation 5 & 6 insufficient to call Leader to answer – Allegation 7, 8 & 9 insufficient evidence to call leader to answer – No case submission upheld.

Cases cited:
In the matter of Michael Nali, Member of Parliament (No 1) [2003] PGLT 2; N2398
Mopio, Re [1981] PGSC 14; [1981] PNGLR 416
Nilkare v Ombudsman Commission of Papua New Guinea [1999] PNGLR 333.
Somare v State [2007] PGNC 34; N3139
Special Reference by the Attorney General pursuant to Constitution, Section 19 [2016] PGSC 52; SC1534
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Roka Pep [1983] PNGLR 19

Counsel:

Mr. F. Popeu, with P. Kaluwin, Assisting the Tribunal
Mr. G. Shepperd, with Mr. P. Tabuchi, Assisting the Leader

10^th February, 2020

1. BY THE TRIBUNAL: This is the ruling on the submission made by the leader at the closure of the case for counsel assisting the tribunal that he cannot be called to give evidence in the inquiry.
   
2. Effectively the Leader argues that the evidence adduced by counsel assisting which include the Acting chief Ombudsman Richard Pagen, Theo Naro Maprik District Treasurer 18^th September 2001 to 2014, Robin Dilindiwi Maprik District Administrator in 2012, Asher Waffi, employee of Bank of South Pacific, Gabriel Kapris former Member for Maprik who is the primary complainant in the matter, Jerry Wandawhan, Don Anikata, Ronald Simbinale and Joshua Himina the various exhibits from Exhibit P1 to Exhibit P87 do not come up to the level of lawfully finding the leader guilty of the nine allegations of misconduct in office that have been levelled at him. He relies on the criminal case of The State v Paul Kundi Rape [1976] PNGLR 96; The State v Roka Pep [1983] PNGLR 19 and poses the issue raised as not whether the Leader ought to be convicted but whether he can be lawfully convicted on the evidence as it stands.
   
3. We view and determine that it is really a question of law not as to determining the credibility of the evidence as to who is to be believed and who not to. That would be at the end when due enquiry has been completed by hearing the initial by the counsel assisting and then the leader. And this view is clear by In the matter of Michael Nali, Member of Parliament (No 1) [2003] PGLT 2; N2398 (29 April 2003). We view that due enquiry is confined to what is led by the reference here there are nine allegations emanating. We are confined to these in the determination as to whether, or not the leader can be called to assist give evidence in the due enquiry. And in our view, this is a question of law posed, could the leader be lawfully found guilty of all or any of the allegations that have been brought against him. And this view stems from Mopio, Re [1981] PGSC 14; [1981] PNGLR 416 (19 October 1981) because we are acting Judicially and in so doing, we apply the principles of Natural Justice. Because the end process in the event of guilt is that we can recommend penalties that include dismissal from office under section 27 (5) (a) of the Organic Law. The process is by law to enter as leader by the Constitution and must remain by law to exit on allegations emanating from the reference referred to the Public Prosecutor for prosecution.
   
4. And therefore, we determine that, “The Ombudsman Commission is required to thoroughly conduct its investigations as serious consequences flow to the leader and the office he holds including dismissal from office,”: Special Reference by the Attorney General pursuant to Constitution, Section 19 [2016] PGSC 52; SC1534 (1 September 2016). Here prima facie no investigations have emanated as evidenced by the Acting chief Ombudsman Richard Pagen in his evidence before us. Prima facie his evidence is that he sent his team of workers to Maprik, but they did not collect evidence because the people there were not cooperative. And no further investigations were conducted since. But he urged that the owners of the companies of the leader could be easily ascertained online on the Investment Promotion Authority site. And in our view, this is despite the powers accorded him by law to acquire and investigate by the Constitution and the Organic Law on the duties and Responsibilities of Leadership: Somare v State [2007] PGNC 34; N3139 (1 June 2007). In that regard it was clear there was no investigation quite apart from the letter annexure Exhibit P4 complaining attaching the materials by statutory declaration exhibit P47 of Gabriel Kapris. These are the source and are part and partial of the Statement of reasons against the Leader. And have comprised the basis for the reference that have been levelled against the leader.
   
5. It is our view and we determine that because the material comprising the Statement of reasons has not been independently verified by investigation by the Ombudsman Commission section 17 (c), 18 (3), and sections 20 of the Organic Law on the duties and Responsibilities of Leadership it would be contrary to law and the Constitution to act on it in furtherance of the inquiry. We would be trotting erroneously against law. There would be no due inquiry without giving heed to natural Justice. The leader has come in as a leader by a Constitutional process Part VI Subdivision B of the Constitution and will exit for misconduct by the leadership Code also by the same Constitution. It would not be proper and lawful and in compliance of the Constitution to act on a statement of reasons that is not the subject of independent investigations by the Ombudsman Commission. It is fundamental and underpinning we would not be acting within our mandate by the Constitution if we do not heed natural Justice which is an integral part also of the Constitution section 59 and here there is evidence of clear noncompliance.
   
6. Compounded by the fact that the principle primary complainant is Gabriel Lenni Kapris the former member of Maprik who has brought this matter to the criminal courts to no avail including the election petition and review to the supreme Court. It is therefore pertinent that there must and ought to be an independent screening and verification of the assertions that are in the statement of reasons. If they are and originate only from Gabriel Lenni Kapris then in our view it would not be safe within the ambit of the Constitution and Organic Law to rely upon to call the leader to answer the allegations as it were. As these are dictates of the highest law of the land the Constitution incumbent upon the Ombudsman Commission to comply. The Commission must be seen to be independent and impartial without preconception it is duty bound: Nilkare v Ombudsman Commission of Papua New Guinea [1999] PNGLR 333.
   
7. We examine prima facie the evidence adduced; That from August 2012 to January 2014 from the Leader failed to carry out the obligations imposed by section 27 (2) of the Constitution by using his office for personal gain IN THAT the Leader paid to his own hire car company namely Extreme Hire Cars a total of K196, 920.00 being public funds from the Maprik District Services Improvement Program Trust and the Maprik District Treasury Operating Account THEREBY being guilty of misconduct in office under section 27 (5) (b) of the Constitution.
   
8. For there to be a case to answer there must be prima facie evidence that K196, 920.00 was paid into the members Extreme Hire Car account. That is not the evidence it is K37050.00 exhibit P57 and by Special Reference by the Attorney General pursuant to Constitution, Section 19 (supra) we cannot find the leader guilty lawfully at this stage of that allegation. The allegation is without lawful basis to call the leader to answer at this juncture of the proceedings. The Public Prosecutor through counsel assisting is not by law allowed to amend the reference. What we have before us is an allegation specifically for K196, 920. 00 which is not made out prima facie by the evidence adduced. There is no case to answer on this allegation and the submission is sustained. It would not improve with the calling of the leader.
   
9. We make similar observation in respect of the related allegation number 2 and determine that that allegation is not made out prima facie. The leader cannot be lawfully found guilty of misconduct in office by virtue of that allegation. Our reasons are set out in our ruling on allegation 1. Both are related and suffer the same reasons in law and have the same determination in law that follow suit. There is no case to answer against the leader. The submission by counsel is sustained here also.
   
10. Extreme Hire Cars is owned by the leader, which is undisputed and established and K37, 050. 00 disclosed by exhibit P57 were paid to it by the Maprik District Treasury under the government accounting process and procedure. It has not been established prima facie the role that the leader played in the payment of this moneys to his company. And how he actively or aided and abetted in ensuring that payment to his company. We are not satisfied that prima facie this is the case now.
    
11. Secondly use of office to benefit the leaders Construction company. Here the allegation 3 reads, THAT from September 2012 to November 2013 the leader failed to carry out the obligations imposed by section 27 (2) of the Constitution; by using his office for personal gain IN THAT the leader allowed for his own construction company namely Extreme Construction to be paid a total of K1,310,746. 00 being public Funds from the Maprik District Services Improvement Program Trust Account and the Maprik District Treasury Operating account for road maintenance on the district roads without following proper tender processes and non-declaration of his interest to the Maprik Joint District Planning and Budget Priority Committee THEREBY being guilty of misconduct in office under section 27 (5) (b) of the Constitution.
    
12. It is related to allegation 4 which reads, THAT from September 2012 to November 2014 the leader, intentionally agreed for the application of monies forming part of a fund under the control of Papua New Guinea to purposes to which it could not lawfully be applied IN THAT the leader intentionally agreed for the payment of K1,310,746. 00 from the Maprik District Services Improvement Project (DSIP) funds to his own company namely Extreme Construction for road maintenance on the district roads without following proper Tender processes and non-declaration of his interest to the Maprik Joint District Planning and Budget Priority Committee THEREBY being guilty of misconduct in office under section 13 (a) of the Organic Law on the Duties and Responsibilities of Leadership.
    
13. In respect of both allegation the evidence beginning page 558 of the Statement of reasons is that K 49, 000.00 was paid by cheque number 1196 responding to invoice number 2 dated the 1^st September 2012 from Extreme Construction to approve for payment 20^th September 2012. That there was government accounting process followed through to the payment that was made at the end of K49,000. 00 not K1,310,746. 00. Mr Dilindiwi acknowledges this fact in his evidence prima facie. It begs prima facie as to how the leader is said to have used his position to attain only K 49, 000. 00 not K 1, 310, 746.00. Consequently, both these allegations are not made out prima facie. They cannot sustain that the leader will be found guilty of misconduct in office. There is no case to answer in respect of allegation 3 and 4 of the allegations. The leader will not answer both allegations. Again, calling him will not improve the inquiry any further than what is now. We will not call the leader in this allegation.
    
14. And thirdly using public funds under pretext of agriculture projects to pay those who supported his election petition. Here the allegation 5 reads, THAT from July 2012 to November 2012 the leader failed to carry out the obligations imposed by section 27 (1) of the Constitution by conducting himself in his public Life and in his associations with other persons in such a way that he: (a) placed himself in a position in which he had a conflict of interests ; and (b) demeaned his office as member of the Parliament for Maprik Open and member of the East Sepik Provincial Assembly IN THAT the leader paid a sum of K48, 500.00 being Public funds from the Maprik District Services Improvement Program funds designated for the District Agriculture Program to his political supporters THEREBY being guilty of misconduct in office under section 27 (5) (b) of the Constitution.
    
15. And allegation 6 in THAT from September 2012 to November 2012 the leader, intentionally applied moneys forming part of a fund under the control of Papua New Guinea to purposes which it could not lawfully be applied IN THAT soon after his declaration as the duly elected member of Maprik Open, the leader applied moneys in the sum of K 48, 500.00 designated for the District’s Agriculture Program to his political supporters THEREBY being guilty of misconduct in office under sections 13 (a) of the Organic Law on the Duties and Responsibilities of Leadership.
    
16. Both Allegations 5 and 6 were confirmed prima facie by District Treasurer then Theo Naro as payments for agriculture grants and were in order because he certified the FF3 and FF4 and released the cheques to the persons applying. And D1 to D37 with the evidence of the three witnesses called do not confirm prima facie that these were political supporters or associates of the leader but people who applied for agricultural grants and who were assisted and paid their applications confirmed by their letters applications that were identified as such. Prima facie reliance on the letters is genuine as Theo Naro’s evidence that although the cheques were printed earlier, he wanted proper requests before releasing them to the applicants. Hence giving effect to Financial Procedures. This does not support that the leader applied prima facie moneys to his political supporters or associates. And with the backdrop of Gabriel Lenni Kapris evidence that he used to work with the district and had access to the documents and that he had obtained all from late Maprik District Administrator George Teleki added with his reluctance to explain with no comment in cross examination it is not well of his evidence prima facie. Correlated with no investigations by Ombudsman Commission it does not advance prima facie. And we make these observations in the light of the fact that Robin Dilindiwi together with Theo Naro were contacted by the Ombudsman Commission on the 15^th October 2019 showing both the complied statement of reasons. There are no independent investigations to confirm the truthfulness, correctness and veracity of the documents from the source at the Maprik District Treasury including any witnesses to verify the allegations at all. The Constitutional and Organic Law breaches are not light matters and must be thoroughly investigated. We are not satisfied prima facie that that is the case here with respect to allegation 5 and 6 and consequently the submission by counsel in respect of both is upheld. The leader has no case to answer in respect of allegations 5 and 6.
    
17. And fourthly using public funds to pay his associates and company Debora's stationeries and office supplies. Here there are three allegations that arise 7, 8 and 9. The former reads THAT from October 2013 to December 2013 the Leader failed to carry out the obligations imposed by Section 27 (1) of the Constitution by conducting himself in his public life and in his associations with other persons in such a way that he: (a) demeaned his office as member of the Parliament for Maprik Open and member of the East Sepik Provincial Assembly; and (b) allowed his official integrity and his personal integrity to be called into question IN THAT the leader allowed his associate namely Felix Buingen to benefit from K 20, 800.00 from the Maprik Treasury Operating Account THEREBY being guilty of misconduct in office under section 27 (5) (b) of the Constitution.
    
18. And allegation 9 THAT from October 2013 to December 2013 the leader, except as specifically authorized by law, directly accepted on behalf of his company namely Deborah’s Office and School Supplies Limited to receive K45, 832. 20 of the District Services Improvement Program Funds out of the DSIP Account number 1001372312 and the District Treasury Operating account number 1000878670, such DSIP funds being Public Moneys THEREBY being guilty of misconduct in office under section 5 (1) of the Organic Law on the Duties and Responsibilities of Leadership.
    
19. All three allegations have no evidence called to sustain and calling the leader will not improve what is already more than lacking prima facie. We determine and uphold the submission by counsel for the leader. The leader will not be called upon to give evidence in the due enquiry in respect of allegation 7, 8, and 9.
    
20. In all the circumstances given, all the reason set out above the application by the leader is upheld, there is no case to answer against all 9 allegations against the leader. We are unable to find any misconduct on the part of the leader in respect of all 9 allegations emanating from the reference. He is discharged forthwith of all the allegations emanating from the reference filed. We determine and hold as a result that his suspension as a result of this reference and the 9 allegations will now be uplifted forthwith.

DATED THIS 10th DAY OF February 2020

________________________________________________________________
Public Prosecutor : Lawyer Assisting Tribunal
Young & William Lawyers : Lawyer Assisting the Leader