Unreported Supreme Court Decisions
SC512
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCM NO 12 OF 1996
BETWEEN:
PAUL PORA - Appellant
And:
THE HON MR JUSTICE SAKORA, GEORGE MANUHU AND ORIM KARAPO Constituting the Leadership Tribunal - 1st Respondent
And:
PANUEL MOGISH - 2nd Respondent
Waigani
Amet CJ Kapi DCJ Salika J
24 June 1996
14 November 1996
CONSTITUTIONAL LAW - Organic Law on the Duties and Responsibilities of Leadership - Referral to the Public Prosecutor and the Tribunal. Ombudsman Commission’s investigation and referral.
APPEAL - Refusal by National Court to grant judicial review - No arguable case on the merits - Principles of natural justice.
EVIDENCE - Non-disclosure of certain documentary evidence - Crucially important and directly relevant to investigations - Not affecting the matter of natural justice - whether sufficient evidence for referral - Tribunal not bound by strict rules of evidence - Section 27 (4) OLDRL.
Held:
1.       That there was no arguable case made out on the merits, to warrant grant of leave.
2.       That the non-disclosure of certain documentary evidence did not affect matters of natural justice relating to the leader.  It goes to the question of whether there was sufficient basis on which the Leader should be referred to the Public Prosecutor.
Counsel:
G Sheppard for the Appellant
L Henao for the First Respondent
J Kawi with C Manek for the Second Respondent
AMET CJ:  The Appellant is a Member of the National Parliament.  He was the Minister of Finance and Planning in a previous Government.  In both capacities he is a “leader” and thus subject to the Organic Law on the Duties and Responsibilities of Leadership (the Organic Law).
The Ombudsman Commission (the Commission) administers the Organic Law.  It is empowered to carry out investigation into the conduct of a “leader”, in relation to allegations of misconduct in office in breach of the Organic Law.
After such an investigation into certain conduct of Paul Pora, in his capacity as the then Minister of Finance and Planning, the Commission formed the opinion that there was evidence of “misconduct in office” and referred the matter to the Public Prosecutor for prosecution by him before the appropriate Tribunal: (ss. 17 (c), 20 (3) and (4) Organic Law).  The Public Prosecutor subsequently referred 31 charges before the Leadership Tribunal.
In the course of the hearing of the charges before the Tribunal, the stage had been reached where the evidence for the prosecution had been concluded and the Appellant was himself completing his evidence in chief, when the issue arose over the non-disclosure of certain documents by the Commission.
The sequence of facts and circumstances as they were unveiled before the Tribunal and it’s deliberations and conclusions upon them are extracted for convenience from the transcript of the proceedings, as follows:
“On Friday, 31st of May, 1996, Mr Sheppard Counsel for and on behalf of the Leader under investigation here, that is Mr Paul Pora, made application, seeking the following immediate relieves or remedies from this Tribunal.  Firstly, the Tribunal discharged Mr Pora, secondly, the Tribunal terminated these proceedings, and finally, the tribunal awarded costs on indemnity basis against the Ombudsman Commission in favour of the Leader.  We heard both counsels on the application and reserved our ruling or decision till this morning.  The application was made as a direct result or consequence of the tendering before the Tribunal of certain document by the learned counsel for the Public Prosecutor on Thursday 30th of May 1996.  These documents came to light, that is, their possible existence came to light when Mr Sheppard sought and had tendered into evidence, without objection on Tuesday 28th of May 1996, a copy of a letter from Ombudsman Commission Ridges to the then Secretary for Finance and Planning, Mr Gerea Aopi, which letter was dated the 14th of August 1992.  The letter was written at the height of the Ombudsman Commission’s investigation into allegations of misconduct in office of Mr Pora, the then Minister for Finance and Planning.  The letter sought the advice and assistance of the then Secretary in respect of seven listed documents and the Secretary furnished these documents.  The seven listed documents directly pertaining to the charges before the Tribunal enumerated as counted 1 - 7 and collectively described in this investigation as the ‘Loans Affair’ allegations and the letter is now exhibit ‘N11’ of this investigation.  It then transpired that Mr Manek, learned counsel for the Public Prosecutor had never seen the letter in question nor a copy thereof before last Tuesday 28th of May.  The letter, exhibit N11 was not part of the document referred to the Public Prosecutor in the first place by the Ombudsman Commission and then referred to this Tribunal by the Public Prosecutor.
The Tribunal then ruled on the appearance of Mr Aopi either voluntarily of under sufferance pursuant to a Tribunal witness summoned to assist the Tribunal on the 14th of August 1992 letter, and any consequence of communications thereof, more particularly, any direct response to the Ombudsman Ridges’ letter of 14th of August 1992.  The Tribunal was subsequently advised that Mr Aopi, who is now the Chief Executive Officer of Telikom would voluntarily appear before this Tribunal and assist the Tribunal in the way the tribunal wanted or requested.  On the afternoon of Thursday 30th of May 1996, Mr Manek advised that since Tuesday 28th of May 1996, he had requested a search of the Ombudsman Commission files and records with a view to locating any documents associated with the 14th August 1992 letter, exhibit N11.  Through the efforts of Mr Ravi Perera, the Senior Legal Officer with the Ombudsman Commission, the documents were located and an affidavit was sworn by Mr Perera to this effect on the 30th of May 1996, annexing documents which were tendered with it and now form part of the evidence before this Tribunal.
The documents that were located and were attached are described in paragraph two of Mr Perera’s affidavit and I go through this very quickly for our present purposes.  Firstly:
(a)      File copy of the Ombudsman Commission letter dated 14th of August 1992, addressed to the Secretary, Department of Finance and Planning as I have indicated already;
(b)      The Secretary’s response to this letter dated 2nd of October 1992;
(c)      File copy of the Ombudsman Commission letter dated 14th of August 1992, addressed to the Secretary, Department of Attorney General;
(d)      The response to this letter from the Acting State Solicitor dated 29th of October 1992; and
(e)      File copy of the Ombudsman Commission letter dated 14th July 1992, addressed to the Secretary, Department of Attorney General and Justice.
Finally, the response to this letter from the Acting Solicitor General dated 30th of September 1992.  All in all, six documents associated with the document now described as exhibit N11.
Now, there is no doubt in the collective mind of the Tribunal that these documents which were crucially important and directly relevant to the investigations and the subsequent referrals, but firstly, referral to the Public Prosecutor and the final referral to this Tribunal and the exercise of its investigatory powers and functions.  Firstly, were or had been in the physical custody and control of the Ombudsman Commission.  There is equally no doubt.  Secondly, that these documents, as I had just described had been withheld from the reference, firstly, to the Public Prosecutor and consequently, reference to this Tribunal by the Prosecutor.  The Tribunal is satisfied in the absence of any explanation by Mr Perera or anybody else for that matter that these documents were deliberately withheld from the Public Prosecutor with the consequent withholding from this Tribunal.  The Tribunal is satisfied this deliberate act on the part of the Ombudsman Commission in a matter so serious to the rights and interest of a leader not to mention firstly, the due discharge of the constitutional duties and functions of the Office of the Public Prosecutor, due discharge of his constitutional powers and functions under the Constitution and the Organic Law of this Tribunal was consciously done with the full appreciation of its consequences.  The Tribunal is fully aware of those consequences and as I said already, we will be adverting to those into more detailed reasons for our decisions.  But the Tribunal is satisfied that what has happened or not happened and which has just been rectified before this Tribunal is no reason for terminating the investigations of this Tribunal.”
The Appellant then applied to the National Court for leave to apply for judicial review of the Tribunal’s ruling.
The National Court declined to grant leave on the basis that the Appellant did not disclose an arguable case on the merits to warrant a full inter-partes hearing.
The Appellant appeals from that decision on the ground that: the learned judge erred in law in finding that there was no arguable case to support the Appellant’s application for leave to apply for judicial review, whereas an arguable case was clearly made out.
The Appellant seeks orders that the order of the National Court be set aside, that leave be granted to him to apply for judicial review and the proceedings of the Tribunal be stayed until the determination of the application for judicial review.
ISSUES TO BE DETERMINED
The substantive issue for this Court is: did the National Court err in holding that the Appellant did not establish an arguable case on the merits to warrant grant of leave?  Put another way, on the materials before the National Court does the Appellant have an arguable case on the merits in law, such that leave should have been granted?
THE LEGAL PRINCIPLES
The legal principles applicable on applications for leave for judicial review involve the exercise of judicial discretion.  The determination to grant or refuse leave to apply for judicial review, hitherto has been based upon four legal principles:
1.       Standing or locus standi, which involves the question of whether the applicant has “sufficient interest” in the issues under dispute.
2.       An arguable case involves the question of whether the application raises any fundamental or serious legal issues.
3.       Exhaustion of administrative remedies raises the question of whether a party should be required to pursue further administrative appeal before bringing the matter to court.
4.       Delay involves the question of whether the application is brought within the prescribed or otherwise reasonable time.
In the application under appeal, only the issue of whether the applicant established an arguable case on the merits arose for consideration.  That an applicant for leave must demonstrate that he has an arguable case on the merits to warrant grant of leave for substantive review has been amply affirmed by the following cases: NTN Pty Limited v The Board of the Post and Telecommunication Corporation and Others [1987] PNGLR 70, and Ila Geno and Others v The Independent State of Papua New Guinea [1993] PNGLR 22.
The following statement of the English Common Law by Lord Diplock in Inland Revenue Commissioners v National Federation of Self-Employed and Small Business Ltd [1982] AC 617 at 644, as to how the issue of whether there is an arguable case is to be determined, has been adopted by these several cases and now forms part of the Underlying Law.  That is:
“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.  The discretion that the Court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.”
In NTN Pty Limited v The Board of the Post and Telecommunication Corporation (Supra), Wilson J quoting this statement of the English Common Law, also referred to and quoted s. 60 of the Constitution, which His Honour said may aid the Applicant’s argument for leave in that case.  Section 60 is in the following terms:
“Development of Principles
In the development of the rules of the underlying law in accordance with Sch 2 (adoption, etc. of certain laws) particular attention shall be given to the development of a system of principles of natural justice and of administrative law specifically designed for Papua New Guinea, taking special account of the National Goals and Directive Principles and of the Basic Social Obligations, and also of typically Papua New Guinean procedures and forms of organisation.”
His Honour said:
“I mentioned this section as it is a matter which in my view should form part of a Court’s consideration in exercising its discretion on whether or not to grant leave where it has some hesitation, as I do in this case, as to whether the applicant has an arguable case.”
APPELLANT’S SUBMISSION
The Appellant submitted that, the foregoing facts and circumstances that were before the National Court sufficiently established an arguable case on the merits, to justify the grant of leave to argue those issues fully in the application for judicial review before the National Court.
The following issues were highlighted as ones that sufficiently establish an arguable case for the Appellant to have been granted leave to proceed to argue them substantively and fully before the National Court.
1.       The conduct of the Commission in withholding evidence from the Public Prosecutor and therefore from the Tribunal, deprived the Tribunal of jurisdiction because the pre-conditions enlivening the Tribunals jurisdiction were shown to have been flawed or absent.
2.       That conduct inevitably gave rise to the issue of breach of natural justice in that the Appellant was not made aware of evidence in his favour which he might otherwise have been able to rely on to his possible exoneration before the Commission referred him to the Public Prosecutor for prosecution.
3.       These circumstances raise the substantive legal and constitutional issues as to the roles and functions of the three institutions that comprise the process of constitutional enforcement of leadership responsibilities; the Commission, the Public Prosecutor and the Tribunal.
4.       Whether by reason of the following facts as found by the Tribunal, the Commission had subverted the rules of natural justice:
(a)      That crucially important and directly relevant documents were withheld from the Public Prosecutor and consequently the Tribunal, by the Commission;
(b)      That the withholding of these documents by the Commission was a deliberate act;
(c)      That the withholding of these documents was done consciously with full appreciation of the consequences to the due discharge of the constitutional duties and functions of the offices of the Public Prosecutor and the Tribunal.
RESPONDENT’S SUBMISSION
The Second Respondent, the Public Prosecutor, submitted that the Appellant could not establish that he had an arguable case in order to persuade the National Court to exercise it’s discretion to grant leave to apply for judicial review.  The Tribunal is empowered by s. 27 (4) of the Organic Law to conduct due inquiry into the matter referred to it, without regard to legal formalities or the rules of evidence and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.
The Tribunal had power to order production of documents, papers or information that in its opinion relates to the matter being investigated and that may be in the possession or control of other persons.
It was submitted therefore, that the Tribunal’s conduct did not amount to a breach of natural justice because the existence of the copy of the letter to the Secretary for Finance and Planning by Ombudsman Ridges was brought to the attention of the Tribunal by the Appellant himself who had possession of it, and the other documents which were in reply to that letter came into the knowledge and possession of the Tribunal when the Tribunal was still performing its investigatory function.
In any event, in the present case, it was submitted, any alleged breach of the rules of natural justice was rectified immediately when the replies were tendered by the prosecuting Counsel before the Tribunal, by the affidavit of the officer from the Commission.  The Appellant was still at liberty to recall witnesses and to examine them on the contents of those documents if he so desired.
It was further submitted that it is not the function of the Court to determine whether all exculpatory evidence in favour of the Appellant have been disclosed or not disclosed, or whether the disclosure or non disclosure may result in the acquittal or guilt of the Appellant.  This function, it was submitted, is a fact finding function for the Tribunal.  To contend that the letters were exculpatory and could have resulted in his non referral to the Tribunal by the Public Prosecutor in the first instance, is again made without any basis and was misconceived.  It was submitted that the alleged letters only referred to the so called “Loans Affair” which constituted counts one to seven.  It had no relevance at all to the remaining 24 counts of misconduct in office.  Furthermore when the referral was made to the Public Prosecutor by the Commission, there were only inculpatory evidence against the Appellant, relating to counts one to seven, on the basis on which the Public Prosecutor made the referral.  The letters would therefore have no bearing on the outcome of the Public Prosecutor’s decision to refer the matter to the Tribunal.  In fact, it was submitted, these documents would have strengthened the Public Prosecutor’s decision to refer the matter to the Tribunal as they were inculpatory in nature, against the Appellant.
CONCLUSION
I am of the opinion that the learned trial judge erred in refusing to grant leave to the Appellant on the basis that no arguable case on the merits was demonstrated.
I am satisfied that, on “a quick perusal” of the material then available, in particular the factual circumstances as found by the Tribunal and reproduced herein, that it sufficiently discloses prima facie an arguable case on the merits, to have warranted the grant of leave.
What is meant by “an arguable case”?  There is no mystery in the notion of an arguable case.  Its most common denominator is that the issues raised have merits to warrant a full hearing.  Various epithets have been employed to describe this principle.  It means that “fundamental, serious, substantive or genuine issues of law have been raised” that require judicial determination.
Determination of an arguable case is a question of fact and degree depending on the evidence available to the Court, as to the existence or otherwise of a case that merits examination by the Court.
What was the evidence and the issues raised from them that could be said to have raised “fundamental, serious or substantive legal issues, or issues of law that raise serious question” that sufficiently amounted to “an arguable case”?
The Tribunal stated, of the revelations, that it was in no doubt in it’s collective mind that:
1.       The documents were crucially important and directly relevant to the investigation by the Commission and the subsequent referrals.
2.       They were and had been in the physical custody and control of the Commission.
3.       They were withheld from the reference to the Public Prosecutor by the Commission.
4.       In absence of any explanation the documents were deliberately withheld from the Public Prosecutor and consequently from the Tribunal.
5.       The matter of the reference was serious to the rights and interest of a leader.
6.       The Commission withheld the documents consciously and with full appreciation of consequences to the due discharge of the Constitutional duties and functions of the office of the Public Prosecutor and of the Tribunal.  And also the due discharge of constitutional duties and functions of the Commission in Investigations and Referrals.
First, these findings of facts raise very fundamental, substantial and serious issues of constitutional and administrative law that raise serious questions as to the roles and functions of the Commission and the Public Prosecutor, in the investigative process under the Organic Law.
The deliberate withholding of documents, arguably exculpatory of the leader, from the referral to the Public Prosecutor, consciously and with full appreciation of the consequences to the due discharge of the constitutional duties and functions of the Public Prosecutor, in a reference which had serious ramifications to the rights and interests of the leader, raised fundamental and serious constitutional issue as to the role and function of the Commission.
These issues were sufficiently meritorious and amounted to an arguable case to warrant grant of leave to hear full inter-partes arguments in relation to them.
Secondly, I am of the opinion that the deliberate withholding of documents, crucially important and directly relevant to the investigation by the Commission and the subsequent referrals, and arguably exculpatory of the leader, sufficiently give rise to the issues of possible breach of principles of natural justice, in that the Appellant was not made aware of evidence in his favour which he might have been able to rely on to his possible exoneration before the Commission referred him to the Public Prosecutor for prosecution.
I am satisfied that in the foregoing circumstances the natural justice principle of the “right to be heard” enabled by s. 20 (3) of the Organic Law, sufficiently raises the issue whether an accused leader is entitled to be made aware of evidence, in the possession of the Commission, which is in his favour or exculpatory of him, in order that his explanations, in the exercise of his right to be heard would be full and complete.
It is in my opinion arguable that the right to be heard require that “particulars and documents which are relevant and vital to a fuller and better understanding of the nature of the allegations, by the leader,” include both inculpatory and exculpatory particulars and documents.
In John Mua Nilkare v Ombudsman Commission (Unreported, Supreme Court Judgment dated 3 May 1996, SC 498), the principle was enunciated in relation to the adequacy of particulars of the charges against the leader.  The issue as to whether a leader who was being investigated was entitled to be made aware of documents or evidence in his favour or exculpatory of him, for the purposes of his “right to be heard”, was not addressed.  The principle enunciated is not exhaustive.
It was said in Nilkare v Ombudsman Commission (supra) that:
“...in order that his explanations thereto would be full and complete to enable the Commission to make the determination as to whether or not there is a prima facie case, then it is incumbent upon the Commission to ensure that the leader is fully aware of such materials and documents.
If the leader requests copies of the same then they should be made available to him.  It would not be appropriate for the Commission to withhold such information with the presumption that they should be used in the prosecution of the allegations before the Leadership Tribunal.”
It is arguable that the principle is extendable and applicable to materials and documents that are or are potentially exculpatory of the leader, or are to his advantage in relation to the allegations against him.
All of these to my mind, simply raise legal issues that are substantive and amount to an arguable case on the merits, for which leave ought to have been granted.
Neither the National Court nor this Court need to determine the merits of these issues.  If they are meritorious and arguable then that is all that need be established for leave to be granted.
DEVELOPMENT OF RULES OF THE UNDERLYING LAW
The third basis upon which I consider that the circumstances of this case sufficiently amount to an arguable case, is that the issues raise the need to consider the development of the rules of the underlying law, in relation to the function of the Commission in an investigation and rules of natural justice right of hearing pursuant to s. 20 (3) of the Organic Law.
The circumstances are novel, they arise for the first time in the administrative and constitutional law jurisdictions of all the institutions and the Courts.
Section 60 of the Constitution injuncts the Courts, in the development of the rules of the underlying law in accordance with Sch 2, to pay particular attention to the development of a system of principles of natural justice and of administrative law specifically designed for Papua New Guinea, taking special account of the National Goals and Directive Principles and of the Basic Social Obligations, and also of typically Papua New Guinean procedures and forms of organisation.
His Honour Wilson J in NTN Pty Limited v The Board of the Post and Telecommunication Corporation (Supra) said s. 60 requirements should form part of the Courts consideration in exercising its discretion on whether or not to grant leave where it has some hesitation.
I agree with and endorse these views.  They are indeed the injunctive of the Constitution.  The circumstances are unique and arise for the first time.  They raise directly the need to consider development of principles of natural justice and administrative and constitutional law that is specifically designed for Papua New Guinea, taking special account of the National Goals and Directive Principles.
I believe that this is a ground itself warranting grant of leave.  If cases raise new constitutional or development of underlying law issues, they must be prima facie arguable and leave should be granted readily so that these issues can be developed.
The circumstances in this case raise constitutional issues as to whether the principle of natural justice of the right to be heard include the provision of particulars and documents that are exculpatory of the leader being investigated.
The other fundamental constitutional issue it seems to me, is as to the role of the Commission in an investigation such as in this case.  What is the function and purpose of the investigation in the scheme of the constitutional regime of the Organic Law on Duties and Responsibilities of Leadership?  Is its function and purpose to investigate and refer for prosecution all cases, no matter what exculpatory evidence there might be in a leader’s behalf?  Is its function to ensure that a leader has not in fact committed a breach of his leadership responsibilities?
These issues relate to the regularity or otherwise of the procedure adopted by the Commission, in firstly deliberately electing not to disclose to the leader documents that were in its possession that were potentially advantageous to the leader in relation to some of the allegations of misconduct, prior to the leader exercising his natural justice right to be heard in relation to the allegations.  The next important issue also relates to the procedural regularity or otherwise of the Commission deliberately and consciously of the possible ramifications to the leader, electing not to include the relevant documents in the referral to the Public Prosecutor to consider referring the leader before a leadership tribunal.
The issues of the underlying law that are raised by these circumstances are whether it is just and fair for the Commission to have acted in this way.  Does the broad principle of fairness require that these documents should have been made available to the leader as they were crucially important and directly relevant to some of the allegations being investigated by the Commission, in relation to which of the documents came into its possession?
I consider that on this basis there is also an arguable case that merited a grant of leave.
ORDERS
I therefore make the following orders:
1.       The order of the National Court be set aside.
2.       The Appellant be granted leave under O 16 r 3 to apply for judicial review in terms of the application filed in the National Court, to be heard by a Judge other than the learned judge appealed from.
3.       That the proceedings of the First Respondent the Leadership Tribunal be stayed until the determination of the Appellant’s application for judicial review.
KAPI DCJ:  The Hon. Mr Paul Pora (Appellant) is a member of the National Parliament and he was charged with 31 charges of misconduct in office pursuant to the Organic Law on the Duties and Responsibilities of Leadership (OLDRL).  A Leadership Tribunal chaired by The Honourable Mr Justice Bernard Sakora was appointed to hear the charges.  The Tribunal had completed hearing evidence from the Public Prosecutor and the appellant was giving evidence when he made reference to a certain letter written by the Ombudsman Commission (Commission) to the Secretary of Finance in relation to some of the charges.  The Tribunal determined that the information requested in this letter was relevant and ruled that the Secretary of Finance should be called to give evidence regarding the response to the letter sent by the Commission.
Before the Secretary could be called to give evidence, a member of the staff of the Commission, Mr Ravi Perera at the request of the Public Prosecutor filed an affidavit in which he annexed a number of documents. The documents included:
1.       Ombudsman Commission letter dated 14 August 1992, addressed to the Secretary, Department of Finance and Planning.
2.       The Secretary's response dated 2 October 1992.
3.       Ombudsman Commission letter dated 14 August 1992, addressed to the Secretary, Department of Attorney-General.
4.       The response to this letter from the Acting State Solicitor dated 29 October 1992.
5.       Ombudsman Commission letter dated 14 July 1992, addressed to the Secretary, Department of Attorney-General and Justice.
6.       Response by the Acting Solicitor-General dated 30 September 1992.
We have not seen these documents.
Mr Sheppard of counsel for the appellant after perusing the abovenamed documents made an application that the Tribunal should immediately terminate its hearing and discharge the appellant.
The Tribunal considered the submission and concluded that:
“Now, there is no doubt in the collective mind of the Tribunal that these documents which were crucially important and directly relevant to the investigations and the subsequent referrals, but firstly, referral to the Public Prosecutor and the final referral to this Tribunal and the exercise of its investigatory powers and functions.  Firstly, they were or had been in the physical custody and control of the Ombudsman Commission.  There is equally no doubt.  Secondly, that these documents, as I had just described had been withheld from the reference, firstly, to the Public Prosecutor and consequently, reference to this Tribunal by the Prosecutor.  The Tribunal is satisfied in the absence of any explanation by Mr Perera or anybody else for that matter that these documents were deliberately withheld from the Public Prosecutor with consequence withholding from the Tribunal.  The Tribunal is satisfied this deliberate act on the part of the Ombudsman Commission in a matter so serious to the rights and interest of a leader not to mention firstly, the due discharge of the constitutional duties and functions of the Office of the Public Prosecutor, due discharge of his constitutional powers and function under the Constitution and the Organic Law of this Tribunal was consciously done with the full appreciation of its consequences.”
The Tribunal nevertheless dismissed the application to terminate and purported to continue with the hearing.
The appellant then made an application for leave for judicial review under O 16 of the National Court Rules.  In essence the application by the appellant sought a declaration that the referral by the Public Prosecutor of charges before the Tribunal are invalid and sought orders in the nature of certiorari and mandamus to terminate the proceedings and discharge the appellant.
The National Court refused leave and the appellant appealed to this Court.  The main ground of appeal is as follows:
“The Learned Judge erred in law in finding that there was no arguable case to support the Appellant’s application for leave to apply for judicial review under O 16 r 3 of the Rules of the National Court, whereas an arguable case was clearly made out.”
The principles applicable to application for leave for judicial review are now well established.  It is only necessary to establish an arguable case.  The relevant principles are conveniently set out in Geno v PNG [1993] PNGLR 22.
The trial judge set out the principles as follows:
“Before leave is granted there are two essentials that must be satisfied.  First the Plaintiff must have standing - that is he must have a legitimate interest in the issues complained of.  There is no doubt of that here.
The second essential principle is that the Plaintiff must have an arguable case warranting further inquiry.
That is better expressed as meaning that leave for review should be granted if on the evidence or material before the Court at the time of application for leave (and without necessarily going into evidence on material in depth) there has been shown to be an arguable case for the granting of the relief sought warranting the Court granting a full inter parties hearing.  That means that if the material in evidence before the Court were to be proved in a review of the action complained of, the relief sought by the court would likely be granted.”
With the exception of the last sentence the trial judge accurately set out the law on application for leave for judicial review.  As far as the second essential is concerned, it is more accurate to state whether there is an arguable case in the substantive relief sought.  To suggest that the relief sought is likely to succeed is to examine the merits of the application.  This misconceives the true nature of an application for leave for judicial review.  The true nature of an application for leave is set out in the judgement of Lord Diplock in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 644:
“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 [sic] in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion that the court is exercising at this stage is not the same as which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.”
This passage was adopted in Geno v PNG (supra).
The trial judge in another case accurately set out the proper test.  In Diro v Ombudsman Commission [1991] PNGLR 153 at 155 he said:
“An ex parte application for leave to apply is not intended to be as extended or exhaustive as a full substantive judicial review hearing.  The purpose is to establish whether the applicant has an arguable case.  There will just as likely be an arguable case in opposition.  But that would not be a ground for refusal.  If the Court can be satisfied there is a case fit for further consideration then leave should be granted.”
Is there an arguable case?  In order to determine this, there must be some appreciation of the nature of what has happened here.  First, the charges to which the subject matter of complaint relate is charge 1 (see affidavit of Paul Pora sworn 4 June 1996 paragraph 6).  We have not been provided with a copy of the charges against the appellant.  As best I can determine from the transcript of submissions by counsel, the charge relate to what has been referred to as the “loans affair”.  The allegations made are that the appellant misconducted himself in office and brought his integrity into disrepute in that:
“he did, without the prior approval of the National Executive Council, and without the knowledge of the assistance of the Department of Finance, negotiated off-shore loans.”
(see submissions by Mr Sheppard, PAUA 31/05/96 page 2).
It is submitted that relevant evidence (the relevant letter set out in the affidavit of Mr Perera) in relation to charge one has been deliberately withheld from the Public Prosecutor and therefore the referral to the Tribunal is invalid.  As I have pointed out before, these letters have not been produced before us.  As far as I can work out from the transcript of evidence in the Tribunal, the relevant letter is dated 2 October 1992 and it states that the appellant as Minister had discussions with Mr Morea Vele who was then the Secretary of Finance and with other officers of the Department in relation to other possible sources of funding for the Government of Papua New Guinea, apart from the conventional borrowing sources of the Government.
It is submitted that this evidence is directly relevant to the allegation that the appellant negotiated off-shore loans without the approval of the National Executive Council and without the knowledge or the assistance of the Department of Finance.
Counsel for the appellant argued before the National Court that leave should be granted for judicial review on the basis that there was breach of natural justice in that the Commission withheld relevant evidence from the Public Prosecutor and subsequently before the Tribunal.  He submitted that this invalidated the referral and therefore the Tribunal has no jurisdiction to continue with the hearing.
Basically counsel for the appellant alleges denial of principles of natural justice.  He has argued the invalidity of the referral by the Public Prosecutor on two bases.  First, he relied on denial of natural justice under s. 20 of the OLDRL.  Second, he relied on the common law cases which support the proposition that where relevant evidence is kept by the prosecution from a tribunal, this would result in denial of a fair hearing and consequently any conviction should be quashed.  (See R v Leyland Justices, ex parte Hawthorn [1979] QB 283; R v Blundeston Prison Board of Visitors, ex parte Fox-Taylor [1982] 1 All ER 646; Al Mehdaw v Sec of State for the Home Department [1989] 3 All ER 843; R v Crown Court at Knightsbridge, ex parte Goonatilleke [1985] 2 All ER 498; R v Kingston upon Thames Justices, ex parte Khanna [1986] RTR 364; R v Crown Court at Liverpool, ex parte Roberts [1986] Crim LR 622; R v Bolton Justices, ex parte Scally [1991] 1 QB 537).
First, I will consider the common law cases.  The first point I wish to make is that there is no need to go to the principles of natural justice developed as part of the “underlying law” as the OLDRL set out the precise requirements for natural justice in leadership proceedings.  I came to this conclusion in John Mua Nilkare v Ombudsman Commission (Unreported judgment of the Supreme Court dated 3 May 1996, SC 498).
However, this does not prevent the application of common law cases dealing with the effect of a breach of natural justice upon a conviction by a tribunal.  The adoption and application of such cases in Leadership Tribunal hearings may be applied by way of analogy rather than by direct application.  The trial judge in this matter examined the common law cases and concluded:
“These illustrate a firm view that it is that not only breaches of natural justice brought about by error of by a Court or Tribunal that will lead to Judicial Review and orders of relief.  Where it can be shown there has been breach of natural justice (whether by fraud collusion perjury or plain error it doesn’t matter) not the fault of the Tribunal but of others preventing a fair trial of the issues, which results in a conviction or an adverse determination - then again the remedies of Judicial Review will lie.
I believe that this decisions, in general, can and should be endorsed in this jurisdiction.  But it must be said, they are not relevant to this matter at all.  Those cases relate to convictions in criminal proceeding or final adverse determinations before other Tribunals, where breaches of Natural Justice were shown to have occurred and which were beyond the power of the determining Court or body to self correct.  Only by judicial review after the event could natural justice be ensured.
But that is not the case here.
The Tribunal’s ruling on the particular evidence is interlocutory only and not even finally adverse to the Plaintiff either.  That is, notwithstanding the Plaintiff’s submissions, no final decision on the guilt or innocence of the Leader has yet been made on any one or thirty one of the charges.
The Tribunal enquiry is not complete.
It says so in its ruling:
‘What has transpired since Tuesday 28 the of May and which forms part of material before us will be the part of the material for the final determination of the allegations;...determination of whether or not the 30 counts that have been levelled against the Leader have been established to the satisfaction of this Tribunal.’
This Court cannot intervene when the tribunal in the process of its enquiry has not made an irrevocable determination adverse to the Leader.  It has ruled that a non disclosure of documents is taken as a most serious breach of duty and one to be taken into account in its final determination of this matter.  That, to my mind is appropriate and not unreasonable since all the evidence is not yet complete.  There is yet to be cross examination of the Plaintiff and there may be further evidence of the Leader or his witnesses called by way of rebuttal if the Tribunal rules to allow such.  Accordingly the contention that the ruling is so totally unreasonable (in a Wednesday sense) that it cannot be upheld, is without basis.”
I have considered the trial judge’s application of the common law cases to the instant case and I agree with his Honour’s analysis.  The cases set out above deal with judicial review of tribunals which have made conclusive adverse findings.  The analogy which is applicable in the present Leadership Tribunal hearings would be this; if the Tribunal proceeded to find the appellant guilty of misconduct contained in charge one and the letter by the Secretary of Department of Finance was subsequently revealed, he would have made an application to quash the finding of the Tribunal on the basis that this important piece of evidence was not brought to the attention of the Tribunal.  As far as the application of these common law cases are concerned, I find that this application has been brought prematurely.
The Tribunal has not yet completed its inquiry and has not yet made any finding in respect of charge number one.  In fact this evidence has now being brought to the attention of the Tribunal and it is a vital piece of evidence in making its findings on charge number one.  It is in the interest of the appellant to make the most of it to prove his innocence.  In view of the revelation of the letter, it is open to the appellant to seek to call further evidence from the Department of Finance to strengthen its defence in respect of charge number one.  The Tribunal is not bound by strict rules of evidence or procedure.
It cannot be said that up to this point of the hearing, the appellant has not been given a fair hearing.  In fact the relevant evidence was volunteered by the Public Prosecutor when it came to his attention.  Further, I hold the view that the appellant himself was capable of calling and leading this evidence if indeed as the letter suggests that he consulted the former Secretary of the Department of Finance and sought assistance from the Department.
The analogy cannot be drawn between the tribunals in the common law cases with the decision by the Public Prosecutor to refer a matter to a Leadership Tribunal.  The Public Prosecutor does not conduct a hearing and does not make any finding of guilt under s. 27 (2) of the ODLRL.  His discretion is confined to considering whether a “matter should be proceeded with” and conduct the prosecution before a Leadership Tribunal.
I agree that there can be no arguable case in this respect.
The second line of argument put forward by counsel for the appellant is based on breach of natural justice by the Commission in not making the letter from the Secretary of Department of Finance available to the appellant and thereby invalidating the referral to the Public Prosecutor.  A breach of natural justice in this regard is not attributed to the Public Prosecutor.  The Public Prosecutor has no obligation to comply with any principles of natural justice before referring the matter to a Leadership Tribunal.  In fact it was the Public Prosecutor who provided the relevant letter to the Tribunal.
This line of argument is based upon s. 20 (2) and (3) of the OLDRL.  A leader who is being investigated has a right to be informed of the allegations of misconduct and the right to be heard before the Commission may exercise its discretion whether to refer the matter to the Public Prosecutor.  This provision has recently been considered in John Mua Nilkare v Ombudsman Commission (Unreported judgment of the Supreme Court, dated 3 May 1996, SC 498).  In so far as it is relevant to the present case, the Supreme Court approved the principle that a leader is entitled to be notified of the nature and the substance of the charges.  The extent to which particulars may be provided depends on the circumstances of the case, the nature of the inquiry, the rules under which the inquiry is acting and the subject matter being dealt with.  The Chief Justice expressed the same principle in the following terms:
“It would not be appropriate to oblige the Commission to hand-over all documents concerning the leader at the time it gives notice of a right to be heard.  By the same token, if there are particulars and documents which are relevant and vital to a fuller and better understanding of the nature of the allegations, by the leader, in order that his explanations thereto would be full and complete to enable the Commission to make the determination as to whether or not there is a prima facie case, then it is incumbent upon the Commission to ensure that the leader is fully aware of the existence of such materials and documents.  If the leader requests copies of the same then they should be made available to him.  It would not be appropriate for the Commission to withhold such information with the presumption that they should be used in the prosecution of the allegations before the Leadership Tribunal.”
It is clear from this that the particulars that need to be notified to the leader “relate to the subject matter of the complaint or the allegation of misconduct”.  The point is to give the leader an opportunity to give an explanation or to deny the allegation before the Commission exercises its discretion whether to refer the matter to the Public Prosecutor.
In the present case there is no allegation that the appellant was not advised of the nature or substance of the charge or that he was not supplied with sufficient particulars or clarifications of the charges.  In this case we are concerned with charge one.  As I have pointed out before, the Commission set out the particulars of the misconduct charge, namely, that he did “without the knowledge or the assistance of the Department of Finance, negotiated off-shore loans”.  If indeed the leader had such assistance and consultation with the Department of the Finance, he had the opportunity to respond in the appropriate manner.  This is a matter which can be said to be within his own knowledge.  Whether he did respond in this manner or not, we have no way of knowing on the materials before us.  There is no suggestion that the appellant requested any particulars, documents or even evidence of this particular misconduct.
As far as the particular allegation with respect to negotiation of “off-shore loans” without the knowledge or assistance of the Department of Finance is concerned, the principles of natural justice have been complied with.  I cannot see how in the circumstances of this case, there can be any valid complaint that he was not given adequate particulars of the alleged misconduct in order to give a reply under s. 20 (3) of OLDRL.  There can be no arguable case in this regard.
The evidence contained in the letter from the Secretary of Finance does not relate to a matter of complaint or an allegation of any misconduct.  This evidence goes to support the innocence of the leader in respect of the particular allegation of misconduct.  This is a relevant matter the Commission should take into account in exercising its discretion on whether to refer the matter to the Public Prosecutor under s. 20 (4) and s. 27 (1) of OLDRL.  I accept that the Commission should not refer a matter if there is no evidence of misconduct.  This discretion must be exercised responsibly.  I assume that the Commission had the letter in question at the time it decided to refer the matter to the Public Prosecutor.
But it would appear that the Commission has referred the appellant despite evidence in the letter from the Secretary of Finance showing that in fact the appellant consulted the Department of Finance.  This is not a matter of natural justice.  It goes to the question of whether there was sufficient basis on which the leader should be referred to the Public Prosecutor.  Whether or not there was evidence of misconduct cannot be determined on the basis of the Department of Finance letter alone.  The Commission would have to have regard to all the relevant evidence before it.  It is not necessary to deal with this issue any further because no such issue was raised by the appellant before the Tribunal after the Public Prosecutor closed its case.  Whether the Commission was correct in its opinion in referring this matter to the Public Prosecutor will be determined by the Leadership Tribunal.  Ultimately, the Tribunal alone has the power under the provisions of OLDRL to determine whether a leader is guilty of any misconduct.
In my view the trial judge was correct in reaching the conclusion that the final decision on the guilt or innocence of the leader has not yet been made and the Tribunal should proceed to complete its hearing.
The appeal is dismissed with costs.  The Tribunal hearing should proceed without any further delay.
SALIKA J:  I have had the opportunity of reading the draft judgment of Kapi DCJ and I agree with his conclusions and the orders proposed by him.  I have nothing further to add.
The formal order of the Court is that the appeal is dismissed with costs and the Tribunal hearing against the appellant should proceed without any further delay.
Lawyers for the Appellant: Maladinas Lawyers
Lawyers for the Respondents: Henao Lawyers
Lawyers for the Second Respondent: Solicitor-General