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Dusava v Justice Doherty [1999] PGSC 26; SC629 (1 October 1999)

Unreported Supreme Court Decisions

SC629

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCM 01 OF 1999
GABRIEL DUSAVA
APPELLANT
V.
THE HONOURABLE MADAM JUSTICE TERESA DOHERTY
(AS SHE THEN WAS) STEVEN OLI AND JOHN NUMAPO
RESPONDENT

Waigani

Los Sakora Kirriwom JJ
26 August 1999
1 October 1999

Counsel

G. Sheppard, for the Appellant

Ms H Polume, for the Respondent

LOS J: The Appellant/Applicant (Dusava) was Secretary for Foreign Affairs until he resigned in 1996 under the circumstances which will become apparent as this judgment continues. The Appellant was under an investigation conducted by the Ombudsman Commission for an allegation of improperly receiving of monies during his term as the Secretary between 1991 and 1993. The allegations were for-

“1. Improperly obtaining advance payment of Housing Allowances, totalling K65,869.36 in 1991

2. Improperly obtaining departmental funds of K10,181.93 in the form of an unlawful tax reimbursement in 1993

3. Improperly obtaining departmental funds of K5,411.04 for improvements to private residence in 1993.

4. Improperly obtaining K8,000.00 from the PNG consulate, Brisbane, to settle a personal Debt in 1993

5. Improperly obtaining K4,573.79 from the PNG Consulate, Brisbane, for private holiday in 1993.

6. Improperly obtaining K522.99 from the PNG Consulate, Sydney, for private holiday in 1993.

After the investigations and compiling a report to the Public Prosecutor, the Appellant was referred to Leadership Tribunal for hearing and determination of the charges. When the Appellant resigned he was no longer a leader as such the ‘case’ could not be proceeded against him. In the meantime he became a candidate and was successful in his electorate in 1997 election. By virtue of his position as an Member of Parliament he became a leader under the Leadership Code. Thus the charges were resurrected and he was called to answer before another Leadership Code.

Through his lawyer, the Appellant challenged the jurisdiction of the tribunal. He argued that he could not be guilty as a leader in the present post for misconduct in a previous position. The tribunal decided that the law was clear and confirmed in 1992 by the Supreme Court in Reference No. 2 of 1992 (1992) PNGLR 336. That is to say that a leader could be dismissed from his current office for misconduct in a previous office. The Appellant then made a reference to the Supreme Court on this and other issues. The court by majority confirmed the 1992 decision but gave leave to the leader to review other aspects of the tribunals decision before a single judge. His review was unsuccessful. This appeal is from that decision.

The jurisdiction of the tribunal to determine liability has been determined by the Supreme Court I do not therefore intend to address it. I think there is some point in considering at some point in time whether formation of multiplicity of charges from one situation could stand. For the situation faced by the Appellant I consider there is a case for consideration in the penalty aspect of the case.

The jurisdiction of the Supreme Court in considering penalties imposed by a tribunal was fully discussed in Nilkare’s case SCA NO. 46 of 1996 Application pursuant to section 155(4) SC 536. There an issue arose as to whether the court had jurisdiction to deal with any penalty issue when it seemed the Leadership Tribunal

was given an exclusive jurisdiction to determine penalties and recommend to the Head of State. The issue brought the interpretation of the extent of power granted in s 155(4) of the Constitution. It was decided by majority that –

“... the jurisdiction to review the penalty recommended by the tribunal is a necessary corollary of the assumption of jurisdiction by this court, pursuant to s 155(4) to review the decisions of the Tribunal. This Court has consequently the inherent jurisdiction to review the penalties imposed, as recommended by the Tribunal.”

Further question was asked whether the Supreme Court had power to recommend other penalties. It was answered in affirmative. The Court said –

“... again, it seems to us trite that if a court has jurisdiction to review an order or penalty, then it has the judicial power to affirm, vary or adjust that order or penalty within the ambit of that power as vested in it. The ambit of the “inherent power” we are here concerned with is to be found in the terms of s 155(4), and non other.”

I grant all important policy consideration in the Leadership Code. Leaders must be transparent. Public must be protected from selfish acts of the leaders. Funds intended for one project must not be misdirected or misused thus causing unequal distribution of funds and the assets to the people of Papua New Guinea.

The Appellant was a Departmental head; the way he used funds for his own benefit was selfish but it limited to the operations of foreign affairs of the State both at the Headquarter and abroad. There were six incidents of misuse but I consider that by extravagantly deriving multiplicity of charges from those incidents the ‘wrong’ was unnecessarily magnified. I say this with the kind of public it was sought to protect and as a personal punishment. The punishment is for the former office; it does not reflect at all any criminality or gross wrongdoing in the present office from which he was dismissed.

It is the public policy that a leader must be transparent. Now the part of the public is the leader’s electorate. People there had not seen anything wrong, they exercised their right to franchise. For months they have been without representation in the public. It is the tribunal’s duty and the judicial officers to ensure selfishness by the leaders is controlled and prevented. But with respect the courts also have duty to be soberly fair because justice is a two-way sword.

I consider in this case the punishment imposed and recommendation for dismissal made cannot be justice. Most penalties were fines, reprimand or order to refund. On top of this recommendation for a dismissal was made. It is my view that looking at the totality of ‘punishment’ of dismissal from the current office which has broad and more responsibilities for transgression relating to an office with limited responsibilities is a grossly disproportionate ‘punishment’. I am therefore of the view that review court was in error in holding that the “Tribunal acted fairly and took into account the correct principles and guidelines in relation to penalty”. I would therefore quash the decision to recommend dismissal on counts 3, 4 and 5, 9, 10 and 11, 12 and concurrent dismissals excepting the order for repayment. Instead I would order that the leader be fined K1,000 on each count. That should any penalty for suspension be outstanding relating to counts 1, 2, they be quashed and instead K250 on each count be imposed.

SAKORA J: The entire circumstances surrounding and giving rise to the institution of this appeal have been sufficiently canvassed by my brother Justice Los and I see no need to add anything. It is those circumstances that make this an appeal by way of Motion pursuant to Order 16 Rule 11 of the National Court Rules (NCR). And the appeal arises from the decision of a National Court upon an Order 16 Rule 3 application. And Order 16 Rule 11 reads as follows:

11. Appeal

An appeal by way of motion under Order 10 of the Supreme Court Rules to the Supreme Court may be made to set aside or discharge any order of the Court or a Judge granting or refusing an application for leave under Rule 3 or an application for judicial review.

After the Supreme Court decision of 27 October 1998 (Unreported SC 581), which decision was confined to the issue of jurisdiction of the Leadership Tribunal, two issues remained, and were properly left, for the consideration and determination of the National Court. That Supreme Court ruled as follows in this respect:

We determine therefore that those grounds as remain in grounds 3 (L) and (M) are grounds properly to be raised in judicial review in the first instance. This Court does not wish to establish a precedent that these grounds raising issues of natural justice and other judicial review type grounds could be raised in the Supreme Court in the first instance. We direct therefore that these grounds be properly argued in the National Court. In the circumstances we invoke the inherent power of this Court and grant leave to be so reviewed, be proceeded with before the National Court.

And the two remaining grounds that went before Justice Andrew were:

3(L) Alternatively, if the said referral was valid, and the Tribunal has jurisdiction (which is contrary to the applicant’s contention).

(i) Section 28 of the Leadership Code is invalid and unconstitutional because:

(A) Under the provision of Section 28 (4) of the Constitution the Leadership Code was only permitted to enact legislation which “provides for the suspension from office of a person to whom this division applies, pending the investigation of any case of alleged or suspected misconduct in office by him.”

(B) Section 28 of the Leadership Code provides not for the suspension from office, as permitted by Constitution, but for the suspension from duty of the leader which is not permitted by the Constitution.

3(M) Further and alternatively, if the said referral was valid, the decisions of the Tribunal are invalid because:

(i) They acted in excess or want of jurisdiction, and

(ii) There are errors of law on the face of the record of the Tribunal, and

(iii) The Tribunal failed to comply with the rules of natural justice in the discharge of the proceedings before them, and

(iv) The Tribunal in their decision making process acted contrary to the Wednesbury principles – where a power is exercised in an unreasonable manner.

The appellant advances seven (7) grounds to challenge the decision of Justice Andrew in the National Court. These are reproduced hereunder as follows:

2. GROUNDS

(i) The learned judge erred in law in holding that the power to enact an Organic law under s. 28 (4) of the Constitution is not different from the Organic Law itself without citing any authority but merely stating that “I do not think there is any merit in this argument”.

(ii) The learned judge erred in law in rejecting the argument that the power to enact such an organic law does not of itself provide for suspension from office and t hat s. 28 is not self-executing, without citing authority but merely by stating that “I do not think there is any merit in this argument”.

(iii) The learned judge erred in law by holding that s. 28 (1) of the Organic Law on the Duties and Responsibilities of Leadership (the “Organic Law”) is not ultra vires because s. 28 (1) (a) of the Constitution provides that an Organic Law may give to the Ombudsman Commission or some other authority any powers that are necessary or convenient for attaining the objects of the Leadership Code and of the Organic law whereas the substance of the argument is that the Organic Law has not given the Ombudsman Commission the power exercised by it in the present case.

(iv) The learned judge erred in law in holding that the Respondents did not act in excess of jurisdiction without stating the ground of such finding other than to say “I cannot find that there was any abuse of power in the sense of bad faith or a mistake in construing the limits of power procedural irregularity or unreasonableness in the Wednesbury sense”.

(v) The learned judge erred in law in holding that “all of the submissions are really attacking the findings of law and of fact of the Tribunal” whereas the appellant’s submissions clearly and expressly adopted a statement of agreed facts and such submissions were entirely a matter of arguments of law.

(vi) The learned judge erred in law in holding that “there were other submissions made in relation to the standard of proof, to the misjoinder of charges and as to a lack of unanimity by the Tribunal” but that “I do not think they have any merit without considering the arguments made in support of such submissions, and rather simply rejecting them out of hand.

(vii) The learned judge erred in law in holding that, as to punishment, “The tribunal acted fairly and took into account the correct principles and guidelines in relation to penalty“ without giving due or any consideration to the arguments in support of a contrary proposition.

The appellant has, in my view, discussed correctly the proper basis for and the underlying principles of judicial review of administrative actions and decisions. It is convenient and instructive, therefore, to reproduce hereunder a part of the appellant’s submission on this aspect, if only to emphasise the role and function of the National Court in its review jurisdiction of a Leadership proceedings and findings:

35. A judicial review in the nature of certiorari under the Wednesbury principles therefore is not an appeal against or challenge to the administrative decision or act, in the sense that the Court could substitute its findings for that of the tribunal (underlining mine).

36. Rather, it is an inquiry within a limited scope to determine whether the tribunal has contravened the law by acting without or in excess of the powers conferred on them by Parliament.

37. It is an inquiry as to vires only.

(These paragraphs appear on pages 13 & 14 of the submissions).

And I accept the appellant’s submission that, in general terms the scope of judicial review of administrative decisions in this jurisdiction has been conveniently set out in the judgment of Justice Woods in the case of Amadio v. Mt Kare Holdings Pty Ltd [1992] PNGLr 218, where at 221 His Honour said this:

The established grounds on which administrative decisions can be reviewed can be summarised from what Lord Roskill said at p. 935 in the Council of Civil Service Unions case . . .

(i) Want or excess of jurisdiction

(ii) Error of law on the face of the record

(iii) Failure to comply with the rules of natural justice.

(iv) The Wednesbury principle – where a power is exercised in an unreasonable manner.

And it is noted that learned counsel for the Tribunal has no contest with the pertinent principles of law. In the submissions on behalf of the Tribunal it is correctly stated that in a judicial review such as the one undertaken by Justice Andrew, it was no concern of the Court with the merits of the decision being reviewed but the legality of the procedures followed and the final decision reached by the body under review. In the case cited by Justice Woods in Amadio v. Mt Kare Holdings Pty Ltd (supra), Lord Diplock set out the grounds upon which judicial review can be conducted on administrative actions and decisions. These are as follows:

· Illegality;

· Irrationality; and

· Procedural impropriety.

The point has to be emphasised that the review jurisdiction of the National Court is not intended to be an appeal procedure. Thus, the Court will not substitute its decision or discretion for those of the body under review. The oft-cited authority on this subject, the decision in the English case of Associated Provincial Picture Houses v. Wednesbury Corporation [1974] 2 All ER 680 (from which the phrase Wednesbury principle or sense is coined) held that:

The reviewing court is not a court of appeal. Subject to complying with the law the discretion of a body to whom the discretion is entrusted is absolute. It must be a real exercise of the discretion. The body must have regard to matters to which it is expressly or by implication referred by the statute conferring the discretion.

That is to say, the review court must be concerned only with determining whether or not the administrative body has:

· Ignored relevant considerations;

· Operated on the basis of bad faith or dishonesty;

· Directed its mind properly to the pertinent law; and

· Acted as any reasonable person would act and not being absurd in its action that no reasonable person would act in such a way.

In the case of Kekedo v. Burns Philp & Ors [1988-89] PNGLR 122, Kapi DCJ had summarised the principles in the Wednesbury sense in the following way (at p. 124):

The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers. And the purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion.

I respectfully adopt these principles in my determination of this appeal against the judicial review in question here.

The appellant’s grounds 2 (i), (ii) and (iii) are concerned with s. 28(4) Constitution. The point taken before His Honour was that this provision says that an Organic Law may provide that a person under investigation may be suspended from office whereas the Organic Law under s. 28 (1) refers to a leader who has been referred to a Tribunal being suspended from duty. It had been argued that the power to enact an Organic Law was or is different from the Organic Law itself, as suspension from office is a different thing to suspension from duty. And as the learned reviewing judge duly noted, it had been further argued that the power to enact such an Organic Law does not of itself provide for suspension from office and that s. 28 is not self-executing and therefore the only power is to provide for suspension from office.

His Honour concluded that there was no merit in the above argument. The appellant contends before us that the learned judge erred in law in reaching the conclusion that he did without citing any authority. It should be pointed out that His Honour did not “merely” state that he did not think there was any merit in the argument. He devoted a whole paragraph to explain why he thought so, and I reproduce it hereunder:

Section 28 (4) of the CONSTITUTION is an enabling provision empowering an ORGANIC LAW to provide for suspension from office of a person who is under investigation of any case of alleged or suspected misconduct in office. S. 28 (1) of the ORGANIC LAW provides for suspension from duty once a person has been referred to a Tribunal under s. 27 of the ORGANIC LAW. These are two different things. I do not think that s. 28 (1) of the Organic Law is any way ultra vires because s. 28 (1) (a) of the CONSTITUTION provides that an ORGANIC LAW may give to the Ombudsman Commission or some other authority any powers that are necessary or convenient for attaining the objects of the Leadership Code and of the ORGANIC LAW. A power to suspend from duty where a matter has been referred to a Tribunal is well within the objects of the Leadership Code and of the ORGANIC LAW.

And that also adequately took care of, in my view, the assertions of the appellant in his Ground 2 (ii) and (iii). His Honour then dismissed Ground 3 (L) of the application for review. I respectfully agree with the learned judge’s conclusion and reasons for these. Except for saying that no authority was cited, the appellant has not, in my view, demonstrated to me that the learned judge fell into any error of law. Upon a proper consideration of the evidence before the Tribunal and the arguments presented at the judicial review application, it was open to His Honour to reach a construction of the subject provision as he did. I have no problem with and hesitation in dismissing Ground 2 (i), (ii) and (iii) as being without merit.

I must note at this juncture that this Court is only concerned with the seven (7) grounds enumerated and outlined above that purport to question the decision(s) of the review Court below. We are not, and ought not be, concerned with matters that tend to go behind the issues before the National Court review proceedings and attempt to resurrect matters that were properly before the subject Leadership Tribunal. This appeal is not to be used as another avenue or forum for regurgitating the arguments advanced before the Tribunal and dealt with by the National Court in the judicial review. I have, therefore, confined my consideration of this appeal to an examination of the grounds of the appeal (set out in full above) and the conclusions and the learned judge’s reasons for these.

Ground 3M(i) deals with the decisions of the Tribunal, challenging these as being invalid because the Tribunal is alleged to have acted in excess or want of jurisdiction. The learned reviewing judge summarised the appellant/applicant’s submissions in this respect as follows (at p. 5 judgment):

... It is submitted that the Tribunal is limited in its jurisdiction to its terms of reference and by the requirement to observe the rules of natural justice and that the charges are formally defective because in their present construction they are incapable of sustaining a charge of misconduct in office under either the Constitution or the Organic Law. Further, it is said, that there is no evidence reasonably capable of sustaining the charges. It is said that Mr Dusava did not act corruptly, for the benefits he received were properly authorised and followed established practice within the Public Service.

The same arguments are presented here before us, attacking the findings of law and of fact of the Tribunal similarly alleging that the appellant was entitled to do what he did and acted honestly and reasonably.

His Honour Justice Andrew in the review Court devoted considerable time and space to considering these submissions in his judgment (pp. 6 and 7). And the learned judge directed his mind to, and considered, the pertinent law supported by case law. It is instructive, therefore, to reproduce hereunder what His Honour said (p. 7):

All of the above submissions were before the Leadership Tribunal and all were considered. The ground upon which the Courts will review the exercise of an administrative discretion or the findings of a Tribunal in a matter such as this is whether there has been an abuse of power e.g.; bad faith, a mistake in construing the limits of the power, a procedural irregularity or unreasonableness in the Wednesbury sense, ie; unreasonableness verging on an absurdity. See Nothinghamshire C. C. v. Secretary of State for the Environment [1985] UKHL 8; [1986] A. C. 240 at 248[1985] UKHL 8; , 1986 1 All ER 199 at 202:

“Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously are acting perversely.”

In the end the learned judge found no errors of fact on the part of the respondent Tribunal. That is to say, he could not find any errors in relation to the findings made “relevant to all of the submissions, which have been outlined. Further, I cannot find that there was any abuse of power in the sense of bad faith, or a mistake in construing the limits of the power or procedural irregularity or unreasonableness in the Wednesbury sense. The Tribunal referred to these matters in its judgment and has acted accordingly. Again, I find no errors of fact or law”. (ibid).

With respect, I find no error on the part of the learned judge in the way it is alleged in Ground 2 (iv) and (v). On the record of the Tribunal’s proceedings, the evidence before it and the pertinent law, His Honour was, in my view, entitled to, justified in, reaching the conclusion that he did.

I would, therefore, dismiss the appellant’s Ground 2 (iv) and (v).

In respect of Ground 2 (vi), what the appellant complains of here is what His Honour said (on pp. 7 and 8 of his judgment).

There were other submissions made in relation to the standard of proof; to the mis-joinder of charges and as to a lack of unanimity by the Tribunal. I am not sure that these matters are raised by Ground 3 (M) but in any event I do not think they have any merit. It was agreed at the Tribunal that the standard of proof required was as set out in the case of Re James Eki Mopio [1981] PNGLR 416 namely that:

“There is no absolute degree or standard of proof to be applied by the Leadership Tribunal. The Tribunal must be reasonably satisfied of the truth of the allegations and it must give full weight to the gravity of a charge of misconduct in office by a person subject to the Leadership Code, to the adverse consequences which may follow and to the duty to act judicially and in compliance wit h the principles of natural justice. Such satisfaction can never be achieved on a mere balance of probabilities.”

And the learned review judge continued and concluded as follows:

There is nothing to say that the Tribunal did not apply this standard. The issue of joinder of charges was raised and the Tribunal found on the basis of Gerard Sigulogo v. The Leadership Tribunal (Unreported judgment N. 829) that charges under both the Organic Law and the Constitution are not bad for duplicity. I see no error or injustice in that finding. The claim that there was no unanimity on the part of the Tribunal is without any evidence whatsoever and has no merit.

There is nothing before us to persuade me that the learned judge fell into any error in the way the appellant alleges here. The foregoing extracts of the judgment sufficiently demonstrate, in my respectful view, that His Honour directed his mind to and properly considered all the arguments put before him on this aspect . To say that the learned judge simply rejected the applicant/appellant’s submissions “out of hand” is to, in my view, deliberately ignore the written words in the judgment and, and be mischievous.

I would dismiss this ground as being without merit.

Finally, Ground 2 (vii) deals with the issue of penalty. The appellant is aggrieved by the learned judge’s conclusion that the Tribunal acted fairly and took into account the correct principles and guidelines in relation to penalty, asserting that His Honour did this “without giving due or any consideration to the arguments in support of a contrary proposition”.

It is noted at the outset that whilst the issue of penalty has been raised directly on this appeal pursuant to Ground 2 (vii), I t was not, as quite properly commented by the learned judge, raised directly in Ground 3 (M) that had been remitted to the National Court by the Supreme Court. Nevertheless His Honour said that the issue could be raised “obliquely” by Ground 3 (M) (iv) by arguing that the Tribunal acted contrary to the Wednesbury principle.

And His Honour then devoted almost 2¹/₂ pages of his judgment to this issue. The judgment itself then deals with, in my view, quite exhaustively (pp. 8 – 10) how the Tribunal went about discharging its very important and onerous responsibility under the Constitution in respect of this very serious issue.

On the allegation that the learned judge did not give due or any consideration to the arguments in support of a contrary proposition, it is instructive to note that the learned judge did take into account what the Tribunal said in respect of the 17 counts upon finding the appellant guilty of these. And this is what the Tribunal said (p. 9 judgment):

Tribunal considers there were 6 separate incidents but notes that the advances of housing allowance were thought about, requested, documented and implemented on 3 different occasions in 1991 and could be regarded as 3 separate incidents. Notwithstanding this observation the Tribunal has given weight to Mr Sheppard’s argument on duplicity and decided that it is only fair that the leader be penalised as 6 incidents notwithstanding he is guilty of 17 counts.

His Honour then proceeded to note that the Tribunal considered the leader’s past good background and of his achievements for his country. He then added the following:

It (the Tribunal) was conscious that a penalty less serious than dismissal was open where there was no serious culpability and where public policy and the public good did not require dismissal.

The learned judge took pains to explain why he had, in his judgment, set out the record of the Tribunal’s deliberations. He did so because (at p. 9):

... it clearly shows that the Tribunal acted fairly and took into account the correct principles and guidelines in relation to penalty...

His Honour then noted what the Tribunal considered in respect of each of the 17 counts under inquiry and investigation, and the penalties imposed in respect of each. In respect of Counts 9, 10 and 11, the learned judge noted and cited what the Tribunal said, and I reproduce this hereunder:

Mr Dusava knew of the restrictions imposed upon use of monies held overseas and we consider this a blatant misuse of his position that could have jeopardised the career of others. We consider that this was an act of serious culpability and so contrary to public good and public policy that it requires the public censure of the maximum penalty and we recommend dismissal from office.

I myself have cited extensively from the judgment of His Honour upon the review to demonstrate that, contrary to what the appellant alleges and asserts, the reviewing court did give due consideration to the arguments in support of a contrary proposition that were urged upon it and the Leadership Tribunal. The record, as evidenced from the judgment, emphasises this. Thus, in my view, to allege and assert in the way the appellant does here is to deliberately ignore the judgment that he asks this Court to overturn, and to indulge in mischievous adventure that has nothing to do with merits.

As if the point needs further emphasis, in the light of the foregoing, the final statement of the learned judge in his judgment must be reproduced here:

On a review of penalty such as this the question is not whether this Court considers that it might have imposed some other sentence but rather whether the Tribunal wrongly exercised its discretion on penalty or fell into some error or whether the penalty imposed might be manifestly excessive. I think that the ultimate penalty of suspension from office was unremarkable given that the Leader had been found guilty of misappropriation of public funds and a blatant misuse of his position as a leader. That penalty was well within the discretion of the Tribunal and in accordance with the aims and intention of the Leadership Code. The Tribunal took into account all relevant factors on sentence and it is not shown that it fell into any error in imposing suspension from office as well as imposing the various fines. (underlining mine)

I find that the learned judge fell into no error at all in concluding as he did on the question of penalty. I would, therefore, dismiss Ground 2 (vii) of the appeal.

I would dismiss the entire appeal as being without merit.

KIRRIWOM J: The back ground to this appeal is covered in the judgement of Los J which I need not repeat. I have also had the benefit of reading my brother Justice Sakora’s judgement in draft to which I concur as to the final outcome of this appeal. However, I wish only to add these thoughts.

This matter comes before this Court by way of an appeal under Order 16 Rule 11 of the National Court Rules against the decision of the National Court on a judicial review application filed by Gabriel Dusava, the appellant herein. The review was heard by His Honour, Andrew J (as he then was) and was confined to two grounds that were referred to the National Court by Supreme Court direction whilst hearing an application before it convened pursuant to s. 57 of the Constitution.

The two grounds for review are:

“3(L) Alternatively, if the said referral was valid and the Tribunal has jurisdiction (which is contrary to the application’s intention)

(i) Section 28 of the Leadership Code is invalid and unconstitutional because:-

(A) Under the provisions of section 28(4) of the Constitution the Leadership Code was only permitted to enact legislation which “provides for the supervision from office of a person to whom this division applies, pending the investigation of any cases of alleged or suspected misconduct in office by him”.

(B) Section 28 of the Leadership Code provides not for the suspension from office, as permitted by the Constitution, but for suspension from duty of the leader which is not permitted by the Constitution.

3(M) Further and alternatively, if the said deferral was valid, the decision of the Tribunal are invalid because:-

(i) They acted in excess or want of jurisdiction, and

(ii) There are errors of law on the fact of the record of the Tribunal, and

(iii) The Tribunal failed to comply with the rules of natural justice in the discharge of the proceedings before them.

(iv) The Tribunal in their decision making process acted contrary to the Wednesbury principles – where a power is exercised in an unreasonable manner.”

His Honour, Justice Andrew delivered his decision on the review on 27^th January 1999 where he dismissed the application for review, hence this appeal.

The appeal before this Court appears to be a resurrection of the issues that the applicant raised previously both in the Supreme Court and the National Court in SCA No. 24 of 1998. In my view those issues have already been given the widest possible deliberation of which decisions are recorded.

To use O.16 r.11 simply as an avenue to mount similar attack that failed to make impact at earlier hearings could amount to abuse of process. However I am not saying that this is the case here. I am satisfied that the matter is properly before this Court by was of appeal and this is conceded to by Counsel for the Respondents. What is this Court to do now that the matter is before us? Do we confine ourselves to the judgment of Andrew J that is the subject of this appeal? Or do we deliberate on the findings of the Leadership Tribunal as we are requested by the appellant to do?

The whole scheme of this appeal is against the Tribunal’s findings of guilt of the appellant for the misconduct offences he was charged with amounting to 17 in total and the penalties imposed, especially the dismissal from office. Mr Sheppard sought to challenge the Tribunal’s findings of guilt by questioning the Tribunal’s jurisdiction on the referral from the Public Prosecutor, on the grounds of duplicity and joinder of charges, natural justice and legality of the charges hence the penalties imposed. For the sake of simplicity I shall consider and treat the appeal before this Court as against conviction or finding of guilt and the imposition of penalties thereto in particular, the dismissal.

With regard to the conviction or the findings of guilt on the charges laid, I don’t see any doubt about the ‘leader’s’ culpability within the meaning of the offence as defined in the Constitution for the enforcement of the Leadership Code. The issue of standard of proof is well settled in James Mopio’s case (1981) PNGLR 416. This is not in dispute. In this case there are instances of admissions being made followed with evidence of restitution or reimbursements which in themselves are admissions of liability. In my view, the question of whether Gabriel Dusava is guilty of these misconduct charges do not arise as the facts clearly speak for themselves. Leadership offences, albeit criminal and attended by penal sanctions, are directed at ‘misconduct in office’ by persons occupying special positions under the Constitution known as ‘leaders’. There is a clear distinction between a leader who is adjudged guilty for a leadership code offence and an ordinary person tried and convicted by a Court for similar offence under criminal law under the criminal justice system. The latter faces the risk of a jail sentence whereas the former does not so in my view the same considerations do not and ought not apply on the question of liability or culpability and even on penalty.

The issue of joinder of charges in a leadership misconduct case was raised in the case of Gerard Sigulogo v. The Leadership Tribunal [1988-89] PNGLR 384 which ruled that the format was appropriate and detailed enough for the leader referred to properly answer the charges. I therefore have no quarrel with the Tribunal’s findings of guilt and I agree with Andrew, J that the charges under both the Organic Law and the Constitution are not bad for duplicity. There is no error or injustice in that findings and this submission is therefore without merit. Appeal against conviction hence fails.

PENALTY

I have decided to separate penalty and to address it as a distinct issue to the conviction. In my view the two must be distinctly kept apart because one is as important as the other.

The appellant Gabriel Dusava was prosecuted before the Leadership Tribunal named as the Defendant/Respondent in these appeal proceedings for 17 counts of leadership offences. He was convicted of all the 17 counts but was penalised for only 6 representing 6 separate incidences of misconduct particulars whereof are:

Counts 1–2: Suspended for 3 months.

Counts 3–5: Dismissal and repayment of K10,181.93

Counts 6–8: Fine of K500 each count.

Counts 9–11: Dismissal from office

Counts 12–17: Fine of K500 each count.

The trial judge also addressed the issue of penalty although it was not raised directly before him. His Honour considered Ground 3(M) (iv) canvassing the Wednesbury principles as sufficiently wide enough to cover the issue of injustice or unreasonableness of the penalties imposed. He stated at p. 9 as follows:

‘The Tribunal next considered the leader’s past good background and of his achievements for his country. It is conscious that a penalty less serious than dismissal was open where there was no serious culpability and where public policy and public good did not require dismissal.

I set out the above deliberations for it clearly shows that the Tribunal acted fairly and took into account the correct principles and guidelines in relation to penalty. The Tribunal considered that on Counts 1 and 2, the implementation of housing advances, that the Leader’s conduct did not amount to serious culpability and suspended the Leader for a period of 3 months. On Counts 3, 4 & 5, the Tribunal considered that the misuse and misappropriation of public funds was an act of serious culpability and the Tribunal recommended dismissal with an order for repayment of K10,181.93. On Counts 6, 7, 8, 12, 13, 14, 15, 16 & 17 the Leader was fined a total of K1,000.

On Counts 9, 10 and 11 the Tribunal said:

“Mr Dusava knew of the restrictions imposed upon use of monies held overseas and we consider this a blatant misuse of his position that could have jeopardised the career of others. We consider that this was an act of serious culpability and so contrary to public good and public policy that it requires the public censure of the maximum penalty and we recommend dismissal from office.”

On a review of penalty such as this the question is not whether this Court considers that it might have imposed some other sentence but rather whether the Tribunal wrongly exercised its discretion on penalty or fell into some error or whether the penalty imposed might be manifestly excessive. I think that the ultimate penalty of suspension from office was unremarkable given that the Leader had been found guilty of misappropriation of public funds and a blatant misuse of his position as a Leader. That penalty was well within the discretion of the Tribunal and in accordance with the aims and intention of the Leadership Code. The Tribunal took into account all relevant factors on sentence and it is not shown that it fell into any error in imposing suspension from office as well as imposing various fines..’

The Tribunal analysed the background and purpose of the Leadership Code. It took note and set out the principles stated by the Constitutional Planning Committee on the necessity of such a code, namely:

‘We have included in our proposals a code which such people will be expected to observe and which will be enforceable by the Ombudsman Commission and an appropriate judicial Tribunal. It is hoped thereby to avoid the kind of corruption too often seen abroad, that stems from the failure to put the public and the natural interest before personal advantage.’

Even the appellant’s counsel’s argument on duplicity of the charges was clearly taken into consideration by the Tribunal as the trial judge summarised in his judgment:

‘The leader was found guilty of all 17 counts but said as follows (referring to the Tribunal):

“Tribunal considers there were 6 separate incidents but notes that the advances of housing allowance were thought about, requested, documented and implemented on 3 different occasions in 1991 and could be regarded as 3 separate incidents. Notwithstanding this observation the Tribunal has given weight to Mr Sheppard’s argument on duplicity and decided that is only fair that the leader be penalised as 6 incidents notwithstanding he is guilty of 18 counts.”

The Tribunal had found in this case 6 counts amounting to serious culpability on the part of the leader who was found guilty of misconduct in office which required the penalty of dismissal. It was thought to be not in the best interest of public policy and public good to impose punishment lesser than dismissal.

Mr Dusava faces the full wrath of the law for his actions when he was the Secretary for Foreign Affairs and Trade. He resigned as Secretary on the eve of his referral for prosecution by the Public Prosecutor. So the referral was held in abeyance until Mr Dusava contested and won the Yangoru-Sausia Open Electorate seat when the charges were revived.

It has been forcefully argued before us that it is not correct that a leader be severely punished with the most extreme penalty under the Constitution while he no longer holds the leadership office to which the offences relate.

The difficulty with this submission is that it was incumbent upon the appellant to be above and beyond reproach before he decided to become a leader as a Member of Parliament knowing the high demand placed upon ‘leaders’ by both the Constitution and the Organic Law on Duties and Responsibilities of Leadership. The appellant was well aware of his own predicament at the time of his resignation as Secretary for Foreign Affairs and Trade and as a leader he is to be taken as being well versed with the provisions under the Constitution and the Organic law on Leadership matters. Ignorance of law is no excuse and the appellant is taken to know this. To aspire to be a leader is a big challenge but it is not a right. One must be above question to hold himself out as such. The misfortunes that befall a leader by his own misconduct or misdeeds are matters personal only to the leader except that others may be affected. In this case one cannot and ought not hold the appellant’s dismissal from office as a Member of Parliament was not conducive to public policy and public good in the context of Yangoru/Sausia people. Firstly, he was a leader of a much wider public, ie; Papua New Guinea, at the time of the alleged misconduct offences and secondly, the people of Yangoru/Sausia electorate were not the only victims of his misconduct in office who can now absolve or redeem him from further misgivings by the mere fact that they need representation in Parliament.

This Court previously exercised its inherent powers under s.155(4) of the Constitution to substitute its own penalties of monetary fines in lieu of dismissals of a leader by a majority decision in SCA No. 46 of 1996, Application by John Mua Nilkare SC 536. I do not find that case as setting any precedent for this Court to follow because the circumstances there were completely different to the one before us now.. On review of the Tribunal’s decision in that case, the Supreme Court sitting as the Court of first instance upheld the applicant’s submissions by two-one majority and over-turned the Tribunal’s recommendation of dismissals and substituted fines instead. The difference in that case is that the Supreme Court quashed the convictions with respect to most of the charges primarily on the basis that the leader did not derive personal enrichment. In this case, all charges which were proven and remain intact, relate to the appellant’s own personal gains and they are of very serious character and nature. To impose any punishment other than dismissal would not be in the interest of public policy and public good considering the leadership position that the appellant held at the time of his resignation and to which this case relates.

I dismiss the appeal on the issue of penalty as well.

This appeal is therefore dismissed.

The decision of the Court by majority (Los, J dissenting) is that the appeal be dismissed and the decision of the Review Court (and consequently the Leadership Tribunals decision) be informed. The question of costs be reserved.

Lawyers for Appellant: Maladinas Lawyers

Lawyers for Respondents: Attorney General