SC1133

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REF NO 3 0F 2011

SPECIAL REFERENCE
PURSUANT TO CONSTITUTION, SECTION 19

REFERENCE BY
THE EAST SEPIK PROVINCIAL EXECUTIVE
Referrer

HON DR ALLAN MARAT MP,
MINISTER FOR JUSTICE & ATTORNEY-GENERAL
First Intervener

HON JEFFERY NAPE MP, SPEAKER OF THE PARLIAMENT
Second Intervener

OMBUDSMAN COMMISSION
Third Intervener

HON SAM ABAL MP
Fourth Intervener

HON PETER O'NEILL MP, PRIME MINISTER
Fifth Intervener

HON BELDEN NAMAH MP, DEPUTY PRIME MINISTER
Sixth Intervener

NATIONAL ALLIANCE INC
Seventh Intervener

GRAND CHIEF SIR MICHAEL SOMARE MP
Eighth Intervener

Waigani: Cannings J
2011: 11, 12, 13, 14, 17, 19 October

Taking of evidence and statement of facts by a single Judge of the Supreme Court upon direction by Supreme Court – Supreme Court Rules, Order 3, Rule 3.

The Supreme Court, constituted by five Judges, directed a single Judge of the Supreme Court to conduct a hearing for the purpose of taking evidence concerning 47 disputed facts in regard to a reference under Section 19 of the Constitution.

Found:

The 47 disputed facts were placed into nine categories, seven of which, it transpired, upon the taking of evidence, were either wholly or largely uncontentious.

1)	Two categories have remained in dispute: whether as a fact, the East Sepik Provincial Executive authorised the Reference and whether Sir Michael Somare has been at any time of unsound mind.

2)	On those issues it was found:

(a)	that the East Sepik Provincial Executive Council authorised the Reference; and

(b)	that Sir Michael Somare has not at any material time been of unsound mind and is not of unsound mind.

Cases cited

The following cases are cited in the findings:

Constitutional Reference No 3 of 1978; In the matter of s11(3) of the Inter–Group Fighting Act 1977 [1978] PNGLR 421
Enforcement Pursuant to Section 57 Constitution, Application by Francis Gem (2010) SC1065
In the matter of Four Remandees Allegedly of Unsound Mind of Boram Correctional Institution, East Sepik Province (2006) N3796
Reference by the Attorney-General and Principal Legal Adviser to the National Executive (2010) SC1078
Richard Manui v ANZ Banking Group (PNG) Ltd (2008) N3405
SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917
SCR No 4 of 1980; Re Petition of MT Somare (No 2) [1982] PNGLR 65
Shaw v Commonwealth of Australia [1963] PNGLR 119

Dates

The events referred to herein occurred in 2011 unless otherwise indicated.

TAKING OF EVIDENCE AND STATEMENT OF FACTS

This is the taking of evidence by a single Judge of the Supreme Court and statement of facts found, upon direction of the Supreme Court. 

Counsel

I R Molloy & J Alman, for the referrer
J A Griffin QC & P Tabuchi, for the first intervener
R J Webb QC, K Frank, N Kera & A MacDonald, for the second intervener
V L Narokobi, for the third intervener
D C Kerr SC & P Kuman, for the fourth intervener
M M Varitimos & F A Griffin, for the fifth and sixth interveners
J K Gawi, for the seventh intervener
M N Cooke QC, G N Egan & J Wohuinangu, for the eighth intervener

19 October, 2011

1. CANNINGS J: I have been directed by the Supreme Court under Order 3, Rule 3 of the Supreme Court Rules to conduct a hearing for the purposes of taking evidence and to state the facts as I find them, and to provide my statement of facts to the Supreme Court by 19 October 2011, in regard to a reference by the East Sepik Provincial Executive under Section 19 of the Constitution. The rationale for this procedure was explained by the Supreme Court in Enforcement Pursuant to Section 57 Constitution, Application by Francis Gem (2010) SC1065: the Supreme Court, which in the present case is constituted by five Judges, is usually not well-suited when exercising its original jurisdiction to conducting a trial on or determining disputed facts. This task can be more effectively undertaken by a single Judge.

2. The Section 19 reference raises various questions of constitutional interpretation and application relating amongst other things to the appointment on 2 August 2011 of the 5th intervener, Hon Peter O'Neill MP, as Prime Minister and the declaration on 6 September 2011 by the 2nd intervener, Hon Jeffery Nape MP, the Speaker of the National Parliament, of a vacancy in the seat of East Sepik Provincial held by the 8th Intervener, Rt Hon Grand Chief Sir Michael Somare MP. The 47 issues of fact on which I have been directed to take evidence and make findings of fact are those in paragraphs 28 to 75 of the statement of agreed and disputed facts put before the Supreme Court on 27 September 2011. The issues in those paragraphs have not been categorised or set out in chronological order, so I have categorised them myself. This will help the Supreme Court to narrow down the most contentious and relevant factual issues. The issues of fact relate to the following matters:

(1)	The Leadership Tribunal proceedings of March 2011.

(2)	Meetings of the Parliament in 2011.

(3)	Sir Michael's absence from the Parliament in 2011.

(4)	Steps taken by the National Executive Council regarding Sir Michael's absence and his health.

(5)	Events of 2 August 2011 relating to the appointment of Mr O'Neill as Prime Minister.

(6)	Events of 6 September 2011 relating to declaration of a vacancy in the East Sepik Provincial seat.

(7)	Media reports of events relating to the reference.

(8)	Sir Michael's medical treatment and his soundness of mind.

(9)	Decisions and resolutions of the referrer.

3. During the course of taking the evidence it became apparent that, in fact, the parties were not in dispute as to all of the issues of fact in paragraphs 28 to 75 of the statement of agreed and disputed facts. Many issues turned out to be largely uncontentious. Some parties did not dispute the facts but submitted that they were irrelevant. I have taken the approach that I should make a finding of fact on each of the issues of fact in paragraphs 28 to 75 of the statement of agreed and disputed facts, irrespective of its relevance. However, in my conclusion I will highlight those issues of fact that have been the most contentious and that I consider are most relevant to the questions of constitutional interpretation and application that form the Reference. This statement of facts is set out as follows.

PART A – THE EVIDENCE: this contains a summary of the evidence that has been taken.

PART B – FINDINGS OF FACT: this records my statement of facts according to the nine categories of fact outlined above.

PART C – STATEMENT OF FACT IN RELATION TO EACH ISSUE OF FACT: this records my findings of fact in relation to each issue of fact in paragraphs 28 to 75 of the statement of agreed and disputed facts.

PART D – CONCLUSION: I summarise my findings on the issues of fact that have been most contentious and which are considered most relevant to determination of the Reference.

PART A: THE EVIDENCE

4. It became evident at the start of the hearing that the nine parties to the reference fall into three camps:

•	the referrer and those parties aligned with it, who it is expected will at the hearing of the reference support the referrer's contentions, viz the 4th intervener, Hon Sam Abal MP; the 7th intervener, National Alliance Inc; and the 8th intervener, Grand Chief Sir Michael Somare MP; and

•	the 1st intervener, Hon Dr Allan Marat MP, Minister for Justice and Attorney-General, and those parties aligned with him, who it is expected will at the hearing of the reference support his contentions, viz the 2nd intervener, Hon Jeffery Nape MP, the Speaker of the National Parliament; the 5th intervener, Hon Peter O'Neill MP, Prime Minister; and the 6th intervener, Hon Belden Namah MP, Deputy Prime Minister; and

•	the 3rd intervener, the Ombudsman Commission, which indicated through its Counsel, Mr Narokobi, that it was not aligned with any of the parties, and did not propose to adduce any evidence.

5. I directed that the evidence would be taken first from the referrer and the parties aligned with it, and then from the 1st intervener and parties aligned with him. The referrer and the parties aligned with it called nine witnesses to give oral evidence, all of whom had sworn affidavits and were cross-examined on them. Five affidavits by witnesses who were not available for cross-examination were admitted into evidence, against the objections of the 1st intervener and parties aligned with him. The 1st intervener and parties aligned with him called two witnesses to give oral evidence, both of whom had sworn affidavits and were cross-examined on them. Seven affidavits by witnesses who were not available for cross-examination were admitted into evidence, against the objections of the referrer and the parties aligned with it. In addition to the affidavits, eight other exhibits were admitted into evidence. The evidence is summarised as follows:

1	Evidence (oral and affidavit) of nine witnesses called by the referrer and the parties aligned with it.

2	Affidavit evidence of witnesses of the referrer and the parties aligned with it, not available for cross-examination.

3	Evidence (oral and affidavit) of two witnesses called by the 1st intervener and parties aligned with him.

4	Affidavit evidence of witnesses of the 1st intervener and parties aligned with him, not available for cross-examination.

5	Other exhibits.

1	EVIDENCE OF NINE WITNESSES CALLED BY THE REFERRER AND PARTIES ALIGNED WITH IT

6. The following table lists witnesses in the order that they gave evidence, summarises their evidence (both oral and affidavit) and categorises it according to the types of factual issues on which findings are required be made.

TABLE 1: WITNESSES CALLED BY THE REFERRER AND PARTIES ALIGNED WITH IT

No	Witness	Description	Category	
1	Hon Peter Wararu Waranaka MP	Governor, East Sepik Province	(9)	

Evidence: He is the member for Yangoru-Saussia Open, the Governor of East Sepik Province and Chairman of the East Sepik Provincial Executive Council – on 4 August 2011 a special meeting of the East Sepik Provincial Executive Council was convened to address grievances and concerns of members of the PEC regarding the events in the Parliament of 2 August 2011 – members of the PEC were informed by way of a submission – a resolution was passed authorising a special reference under Section 19 of the Constitution.

An error was made by the cabinet secretary, Mr Sino, in recording the resolution; it states that the PEC 'recommended that the Council resolves to file a Supreme Court reference under Section 19(3)(eb) of the Constitution', whereas it should have stated that the 'Council resolves to file a Supreme Court reference under Section 19(3)(eb) of the Constitution' – this was a typing error – he became aware of the error when it was pointed out by his lawyers a couple of weeks ago.

He signed the resolution in haste late on the night of 4 August in Wewak – it was a special PEC meeting, it was a pressing issue as he had to sign the resolution before flying to Port Moresby the next day – he also signed the minutes of the meeting that night – there were blackouts – they struggled through stress.	
2	Michael Mosoro 	Special projects officer, legal affairs, East Sepik Provincial Government	(9)	
Evidence: He was secretary to the East Sepik Provincial Executive Council from April 2003 to April 2011 when he was elevated to his current position – the practice and custom is that a quorum is 'just over one half the total number of members of the PEC' – on 2 August the total PEC membership was 15, hence the quorum was eight – he proof-read the submissions that went to the PEC and draft minutes and resolutions before they were submitted for approval and signing by the chairman – he annexed a copy of the minutes (as distinct from the resolution) pertaining to the meeting of 2 August to his affidavit.

He was present at the meeting in Wewak on 4 August – it started at about 7.00 pm and dragged on for a while, with lots of discussions and interruptions – they had to ensure that the PEC members understood what was being put before them – the resolution contains an error: it states that the PEC 'recommended that the Council resolves to file a Supreme Court reference under Section 19(3)(eb) of the Constitution', whereas it should have stated that the 'Council resolves to file a Supreme Court reference under Section 19(3)(eb) of the Constitution' – this was a typing error – he became aware of the error a couple of days ago.	
3	Hon Samuel T Abal MP	Member of the National Parliament
Member for Wabag	(1)	– (6)	
Evidence: He was appointed Deputy Prime Minister on 7 December 2010 – he became Acting Prime Minister in late March 2011 when Sir Michael Somare went overseas and remained Acting Prime Minister while Sir Michael was in ill-health and undergoing treatment and surgery, until 2 August 2011 – on 28 June 2011, Arthur Somare made a public statement on behalf of the Somare family that their desire is for their father Sir Michael to retire on medical grounds; this announcement triggered the need to initiate a process that could clearly deal with the question of Sir Michael's future as Prime Minister: Statutory Business Paper No 58 of 2011 was prepared – as part of this process Prof Sir Isi Kevau prepared a preliminary medical report in his capacity as Sir Michael's personal doctor – on 29 July 2011 the National Executive Council advised the Governor-General, Sir Michael Ogio, to request the Papua New Guinea Medical Board to appoint two specialist doctors to conduct medical examinations and to report to the Governor-General within 28 days and to not suspend Sir Michael as Prime Minister – the Governor-General, acting in accordance with the advice of the National Executive Council, made a decision in those terms on 1 August 2011.

Mr Abal tried to obtain frequent reports on Sir Michael's health from the time that Sir Michael went to Singapore – he received reports from two Ministers: Hon Arthur Somare MP and Hon Timothy Bonga MP – he made a statement to the Parliament on 10 May 2011 – he spoke to Hon Arthur Somare MP a couple of days before the press conference of 28 June and Mr Somare told him that Sir Michael was in no condition to make a statement to the nation.	
4	Michael Sino	Secretary to the East Sepik Provincial Executive Council	(9)	
Evidence: The Governor directed him at 10.00 am on Thursday 4 August to organise a special meeting of the PEC – the meeting was convened at 7.00 pm that day in the PEC conference room – the PEC resolved to exercise its power under Section 19(3)(eb) of the Constitution to seek the Supreme Court's opinion on whether the decision to appoint a new Prime Minister was legal – the PEC unanimously agreed and resolved to do so – he drafted minutes of the meeting and a resolution and he and the Governor signed both documents.

He prepared two affidavits for these proceedings, the first annexed the resolution, the second annexed the minutes – he also prepared his own notes of the PEC meeting but his notes were locked in a cabinet in Wewak – the resolution emanates from the minutes, and the minutes from his notes – he has been 'the Cabinet secretary' since March 2011 – he has been a public servant since 1980 – the meeting of 2 August was convened at 7.00 pm and the Governor called it to order at 9.30 pm – it was an urgent meeting the progress of which was made difficult by blackouts – the usual practice is not to distribute minutes of PEC meetings, only the resolutions.	
5	Prof Sir Isi Kevau	Executive Dean and Professor of Medicine, UPNG, Consultant Physician and Cardiologist	(4) & (8)	
Evidence: He has been Sir Michael's consultant physician since 1980 and is familiar with the facts and circumstances surrounding Sir Michael's state of mental and physical capacity – he prepared a report upon the request of the Acting Prime Minister, Hon Sam Abal MP, and the Attorney-General, Sir Arnold Amet MP, dated 22 July 2011, which was intended to form the basis of a submission to the NEC regarding Sir Michael's future as Prime Minister – the report (annexed to the witness's affidavit) followed three visits (in April, May and July) by Sir Isi to Singapore and recorded Sir Michael's aortic valve disease, which has been documented and well known for 10 to 15 years – in March 2011 Sir Michael started to feel more breathless than usual, this was the beginning of heart failure, and led to him flying to Singapore on 29 March, he was admitted to the ward at Raffles Hospital on 30 March – it was decided, in consultation with Sir Isi and Sir Michael's family and with Sir Michael's consent, that Sir Michael should have open heart surgery, involving aortic valve replacement, which he underwent on 21 April – on 28 April he was discharged from the ICU to the general ward – he was making good progress and was alert and mobile but on 4 May developed a cardiac arrest and had to be resuscitated and was rushed to the operating theatre for emergency surgery: bleeding into the chest cavity was the cause of this catastrophic event and was surgically corrected – he was managed in the ICU and showed gradual improvement – on 11 May he had another bleeding episode and was rushed to theatre again and again the cardiothoracic surgeon discovered the sources of the bleeding and ligated the leaking blood vessel and Sir Michael was readmitted to ICU – there were many subsequent complications but Sir Michael displayed amazing innate strength and continued to recover – Sir Isi's report concluded that Sir Michael's recovery is an ongoing process and no one can predict exactly when he will be out of the hospital, though it is likely to be quite soon, given the speed of his recovery.

On 28 September Sir Isi travelled to Singapore and met Sir Michael and accompanied him during a series of consultations and examinations with the doctors who had operated on and treated him at Raffles Hospital – his speech was normal and he was alert and sharp and was walking around unaided.

In cross examination: the cardiac arrest of 4 May was a catastrophic event, if it had not been corrected within four or five minutes there would have been serious consequences for other organs – on 11 May, when there was a further complication, it was feared that he might have an aortic rupture, if that were the case a major decision would have to be made – Sir Michael also had acute, but not chronic, renal failure – he believes that Sir Michael was not discharged from Raffles Hospital until 27 or 28 August – there were substantial periods when Sir Michael was heavily sedated and unable to communicate – Sir Isi did not discuss Sir Michael's future as Prime Minister with Sir Michael or members of Sir Michael's family as it was not appropriate to do so, discussions were confined to his clinical situation – Sir Michael was unable to participate in making serious decisions once he had the cardiac arrest (however, for a week after the initial surgery, he was OK) up until the date of the report (22 July); however he was recovering with good speed.	
6	Justin Wohuinangu	Lawyer, Posman Kua Aisi Lawyers	(2), (3), (6)	
Evidence: He is the instructing lawyer in SC Ref No 3 of 2011 – in early September he exchanged correspondence with the Clerk of the Parliament, Don Pandan, regarding Sir Michael's absences from the Parliament since May 2011, the leave of absence granted to him, arrangements for Sir Michael's attendance in the Parliament on 6 September and the consequences for Sir Michael's qualification as a member of the Parliament if he were to attend, as proposed, on 6 September – copies of letters sent to and received from the Clerk are annexed to Mr Wohuinangu's affidavit.

He filed proceedings in the National Court on instructions from Hon Arthur Somare MP challenging the validity of the disqualification of Sir Michael as a member of the Parliament: OS No 728 of 2011, 	
7	Simon Kaiwi	President, National Alliance Inc 	(5)	
Evidence: the 4th intervener, Hon Sam Abal MP, became Deputy Prime Minister in December 2010, replacing Hon Don Polye MP, and became Acting Prime Minister in 2011 when the Prime Minister, Sir Michael Somare, was hospitalised – he wants the National Alliance to play the role of a friend of the Court to assist the Court address the constitutional issues by provision of contextual information – in his view the events of 2 August are the outcome of amongst other things Sir Michael being sick and absent from the local political scene, lack of credible information reaching the public on the health of Sir Michael.	
8	Joyce Isobel Grant 	Secretary and Public Officer, National Alliance Inc	(5)	
Evidence: The National Alliance Party's position is that Sir Michael is still the Prime Minister of a lawful government – the present Government has assumed office by means not sanctioned by the Constitution.	
9	Grand Chief Sir Michael Somare MP	8th intervener	(1)	– (9)	
Evidence: He swore two affidavits deposing as to his knowledge of the events of 2 August – he considers that he is still the sitting member for East Sepik Provincial – he was unconstitutionally disqualified as a member of the Parliament on 6 September – he filed an originating summons on 12 September challenging the validity of his disqualification – he has read the medical reports provided by his treating specialists and believes the reports are consistent with the treatment given to him at Raffles Hospital, Singapore, from 30 March to 22 August – he has returned (as at the date of the second affidavit, 4 October) to PNG and it is his wish and intention to resume his roles and duties as Prime Minister.

In oral evidence he testified that he was still a sick man – he takes rests each day and sleeps – he only became aware of Mr O'Neill's appointment as Prime Minister some days after 2 August – he is not aware of any order that he provide detailed medical records (as distinct from medical reports) from Raffles Hospital – he was in intensive care for three or four months and for long periods he could not communicate – he was suffering from diabetes and he had three operations – he was not able to write letters while he was in hospital but can do so now, having started about a week ago.

He has not considered retiring from politics, that will only happen when writs are issued for the next general election – he became aware of the press conference of 28 June by his son, Hon Arthur Somare MP, two or three days or a week afterwards – he thought Arthur made those comments on behalf of the family as he was concerned about criticism the family was receiving – but he has felt physically fit to continue in office and he is an individual, he makes his own decisions – though Arthur said it was the family's decision, he (Sir Michael) is the head of the family and he makes his own decisions – he (Sir Michael) was elected as the Prime Minister and in his view he remains the Prime Minister – he was not in a physical position, being on the sick bed in hospital, to respond to Arthur's press conference of 28 June – Hon Arthur Somare MP represents a constituency and was entitled to express his views – but he (Sir Michael) was elected until 2012 and will stay and complete his term – he was tested before he left Singapore as to his ability to count and read and he beat those tests – Professor Kevau has verified that he is OK – he had two members of his personal staff with him in Singapore, his principal private secretary and his protocol officer – Arthur visited him three times, his daughters came at their own expense.

He is not aware of National Court proceedings commenced in his own name challenging his disqualification from the Parliament – not aware of Justice David's decision in OS No 728 of 2011 refusing orders sought by him (Sir Michael) against the Speaker, the Clerk and Prime Minister O'Neill.	

2	AFFIDAVIT EVIDENCE OF WITNESSES OF THE REFERRER AND PARTIES ALIGNED WITH IT, NOT AVAILABLE FOR CROSS-EXAMINATION

7. Their evidence is summarised in the following table.

TABLE 2: AFFIDAVIT EVIDENCE OF WITNESSES OF THE REFERRER AND PARTIES ALIGNED WITH IT, NOT AVAILABLE FOR CROSS-EXAMINATION

No	Deponent 	Description	Category	
1	Mr Lawrence Peter Lim Hong Haw	General Manager, Raffles Hospital, Singapore	(8)	
Evidence: He met with Sir Michael's legal representative, Mr Greg Egan, Prof Sir Isi Kevau and Mr Arthur Somare at Raffles Hospital on 29 September 2011 – Mr Egan asked him to provide all of Sir Michael's medical reports and records – he informed Mr Egan that Raffles Hospital had a policy and practice not to release or reproduce medical reports of its patients unless disclosure is required by the Singapore Courts in accordance with the laws of Singapore – however, the hospital would provide medical reports for the material period and these reports would be provided by the following specialists: Dr Ng Wai Lin, specialist in cardiology; Dr Chan Choong Chee, specialist in respiratory medicine; Dr Sim Kwang Wei Eugene, consultant cardiothoracic surgeon; and Dr Ekachai Danpanich, specialist in renal medicine.	
2	Dr Chan Choong Chee	Specialist in Respiratory Medicine, Raffles Internal Medicine Centre, Raffles Hospital, Singapore	(8)	
Evidence: Sir Michael has been under his care for asthma since September 2006 – Sir Michael was hospitalised on 30 March 2011 for asthma and congestive heart failure due to aortic valve regurgitation – after his condition was optimised he had aortic valve replacement surgery on 21 April 2011 – the course in the hospital was complicated by sternal dehiscence, requiring rewiring of sternum on 5 May, and bleeding from the internal mammary artery, requiring re-exploration surgery on 11 May 2011.

Sir Michael was in ICU for an extended period – on prolonged mechanical ventilation and had a tracheotomy performed on 11 June – still breathing with tracheotomy tube on 1 August – on 2 August he was afebrile (no fever), alert and doing well and his tracheotomy tube was removed without any problems – Dr Chan last examined Sir Michael on 3 August and found him to be afebrile, alert and breathing normally without tube – Sir Michael continued to improve and was discharged from hospital on 22 August 2011 – Dr Chan last saw Sir Michael on 29 August 2011 and noted that Sir Michael was well and moving around independently without any aid.	
3	Dr Ekachai Danpanich	Specialist in Renal Medicine, Uro-Renal and Raffles Dialysis Centre, Raffles Hospital, Singapore	(8)	
Evidence: He participated in Sir Michael's care from 4 May 2011 as he developed acute renal failure – his renal function continued to worsen and he underwent haemodialysis from 9 to 23 May, when his renal function began to improve gradually - despite multiple complications during hospitalisation, Sir Michael's renal function on 1 August 2011 was significantly improved.	
4	Dr Sim Kwang Wei Eugene 	Consultant Cardiothoracic Surgeon, Raffles Heart Centre, Raffles Hospital, Singapore	(8)	
Evidence: Sir Michael was diagnosed with severe aortic valve regurgitation and required an aortic valve replacement which he (Dr Sim) and Dr Wu Dar Ching performed on 21 April; 14 days after surgery he developed sternal dehiscence that required sternum re-wiring on 5 May – on 11 May he developed spontaneous bleeding which required mediastinal re-exploration and haemostasis – after those operations his recovery was marked with respiratory tract infection and renal impairment – during that period of recovery and up until 2 August there was no evidence of structural brain damage or any evidence that he was of unsound mind.

Dr Sim last examined Sir Michael on 29 September 2011: his wounds are well healed, a 2D echocardiography showed the valve functioning well, he has completely recovered from surgery and is fit to resume duties.	
5	Dr Ng Wai Lin	Specialist in Cardiology, Raffles Heart Centre, Raffles Hospital, Singapore	(8)	
Evidence: Sir Michael was admitted to Raffles Hospital on 30 March 2011 for shortness of breath due to heart failure: severe aortic valve regurgitation – heart failure was treated with medication before he underwent aortic valve replacement – the surgery went well and he was recuperating but he suddenly had cardiovascular collapse on 4 May and was resuscitated – need drainage of his pleural cavity and reopening of his sternotomy – there were subsequently a number of complications, including multi-organ failure and acute renal failure – he needed a prolonged period of intubation/ventilation because of his lung problems – they were concerned he might have developed a cerebral event such as a stroke but various tests, including CT scans of the brain did not reveal any stroke/cerebral infarction – despite various setbacks and multiple complications he made an excellent recovery and was discharged on 22 August – Dr Ng states that he did not make a detailed neurological assessment of Sir Michael on 1 or 2 August as he did not think it was medically necessary – it would not have been at that time a good guide to Sir Michael's eventual neurological state as he was still receiving treatment for sepsis, active pulmonary problems and was also being given sedatives – his medical condition then was good and his progress was better than expected – he reviewed him in the outpatients department on 29 September and he was well – back to his pre-morbid state prior to hospitalisation apart from slight physical weakness due to wasting of quadriceps muscles: full recovery from this is to be expected – latest echocardiogram shows that his bio-prosthetic aortic valve is functioning normally.	

3	EVIDENCE OF TWO WITNESSES CALLED BY THE FIRST INTERVENER AND PARTIES ALIGNED WITH HIM

8. Their evidence is summarised and categorised in the same way as is the evidence of witnesses for the referrer and parties aligned with it.

TABLE 3: WITNESSES CALLED BY THE FIRST INTERVENER AND PARTIES ALIGNED WITH HIM

No	Witness	Description	Category
	
1	Hon Dr Allan Marat MP	Member for Rabaul Open, Minister for Justice and Attorney-General, 1st intervener	(1)	– (7) 	
Evidence: He summarised the Leadership Tribunal proceedings of March 2011, the sittings days of the Parliament in 2011 – Sir Michael was absent for the whole of three consecutive sittings (May, June and August) and did not have leave to be absent for those consecutive sittings – on 10 May Hon Sam Abal made a statement to the Parliament regarding Sir Michael's health – the Parliament was not otherwise informed as to his health – the only public announcement by any member of Sir Michael's family as to his health was at the press conference of Hon Arthur Somare MP on 28 June – by the time that the Parliament sat on 13 August many members of the Parliament were completely dissatisfied with the long absence of Sir Michael and the lack of reliable information as to the effects on Sir Michael of his long illness and hospitalisation – Hon Arthur Somare MP reiterated the family's position, which was still the same as on 28 June, in a Radio Australia interview on 2 September – Sir Michael attended the sittings of the Parliament for 40 minutes on 6 September, it was the first time he attended any sitting since February 2011.

In September he (Dr Marat) became aware that millions of Kina of public money had been paid for allowances, accommodation and other expenses in connection with Sir Michael's stay in Singapore – Dr Marat provided documents supporting that assertion.
	
2	Dr Mary Margaret Elizabeth Kerr	Clinical Neuropsychologist	(8)	

Evidence: Her opinion based on the agreed facts (in particular that Sir Michael was hospitalised from March to August and had aortic valve replacement surgery on 21 April, a cardiac arrest on 4 May, emergency surgery on 11 May, acute renal failure requiring dialysis, serious breathing difficulty requiring ventilation and serious infections) is that it is likely that for the whole of the period from 4 May to 2 August 2011, Sir Michael:

•	suffered irreversible brain damage and a significant reduction in his capacity to reason and make decisions (cognitive ability);
•	was incapable of managing his affairs;
•	lacked the capacity to carry out the functions and duties of the office of Prime Minister and of a parliamentarian; and
•	lacked the capacity to make an informed decision whether or not to resign as Prime Minister or as a parliamentarian.

A very high level of cognitive ability (thinking, analysing, reasoning) would be necessary if he were to resume a demanding role in public office – it is questionable whether he has sufficient cognitive capacity and is of sound mind to be able to carry out the duties of a Prime Minister – to determine with certainty the effects of likely brain damage it is necessary to have access to the medical hospital records covering the whole of his period of treatment at Raffles Hospital and, with the benefit of them, to undertake a quantitative neuropsychological evaluation of him ... both his memory and executive functions – she has read the reports from the various doctors including the affidavit of Prof Isi Kevau that attended to Sir Michael during the period Sir Michael was hospitalised and expresses the view that nothing in those reports has led her to change her opinion – there appears to have been no investigation undertaken into the neuropsychological effects of the physical illness and trauma – Professor Kevau's observations are not unexpected – as is the case with many neurological conditions, long term memory is less subject to deterioration than cognitive ability – it is not apparent that there has been any formal neurological or neuropsychological assessment (eg magnetic resonance imaging, MRI) performed on Sir Michael since his admission to hospital in March to assess whether he has suffered any cerebral insult.

Commenting on the affidavit evidence of the four specialists from Raffles Hospital [see table 2 above]: Dr Chan's observation that on 2 August Sir Michael was alert and doing well is insignificant as it is perfectly possible for a person to appear alert despite having suffered significant cognitive impairment; Dr Ekachai's record of various complications suggests that acute renal failure soon after the cardiac arrest of 4 May suggests that the two events are linked; Dr Sim's report makes no mention of the cardiac arrest of 4 May, which in her opinion is likely to have caused brain damage; also the need for dialysis for acute renal failure suggests that multiple organs had been damaged, which is a matter of concern as the brain is particularly susceptible to damage following loss of blood supply; Dr Ng's reference to a cardiovascular collapse on 4 May is non-specific, but it is clear that the condition was extremely serious as cardiac arrest involved complete cessation of cardiac output; in any event Dr Ng, a cardiologist does not have the expertise to enable a proper judgment to be performed as to whether a detailed neurological assessment was necessary.

In cross-examination: Dr Kerr emphasised that her opinions as to the likely effects of Sir Michael's serious illnesses and trauma that he had endured over a long period were neither conditional nor speculative – though she has never examined him, her opinions were based on a lot of information that she had examined including his medical history and the particular series of events that occurred, which is of paramount importance in assessment of the likelihood of brain damage and other neuropsychological impairment – she rejected the contention that her opinions were made without foundation – the medical reports, including Professor Kevau's report, have not led her to change her opinion of the likely effects of what Sir Michael has endured – no proper measurement of Sir Michael's cognitive function has been undertaken: the observations of alertness and ability to engage in conversation are inconsequential – it is not unusual for people in Sir Michael's condition to pass off as being normal while experiencing severe cerebral dysfunction – a cardiac arrest is by its nature a serious event involving a loss of blood supply for a period to vital organs including the brain – the medical team in Singapore asked for a CT scan of the brain, which indicates substantial concern as to the effect on the brain of what had happened to Sir Michael – the fact that there was no evidence of a stroke or infarction does not mean that there was no loss of cognitive function – appropriate tests were not administered to measure cognitive impairment – Dr Kerr agreed that there was no evidence of any psychiatric or psychological problems encountered by Sir Michael but that also did not have any effect on her opinion as to the likelihood of irreversible brain damage and related cognitive deficits – her opinion was also unaltered when it was suggested that Sir Michael had passed tests in Singapore as to his ability to read and count: there is no evidence that he had any proper neuropsychological testing.	

4	AFFIDAVIT EVIDENCE OF WITNESSES OF THE FIRST INTERVENER AND PARTIES ALIGNED WITH HIM NOT AVAILABLE FOR CROSS-EXAMINATION

9. Their evidence is summarised in the following table.

TABLE 4: AFFIDAVIT EVIDENCE OF WITNESSES OF FIRST INTERVENER AND PARTIES ALIGNED WITH HIM 
NOT AVAILABLE FOR CROSS-EXAMINATION

No	Deponent 	Description	Category	
1	Timothy Ng Wai Keong	Solicitor, Director, Timothy Ng LLC, a law corporation under the laws of the Republic of Singapore	(8)	
Evidence: He personally served the special reference of 5 August and related documents on Sir Michael at Raffles Hospital on 19 August – he is unable to personally attend the Supreme Court hearing on taking of evidence in Port Moresby due to prior commitments in Singapore and his inability to travel on long flights due to health reasons.	
2	Choo Ching Yeow Collin 	Solicitor, Partner, Derek Wong and Lim BC LLP, a limited liability partnership under the laws of the Republic of Singapore	(8)	
Evidence: He accompanied Timothy Ng when he personally served the special reference of 5 August and related documents on Sir Michael at Raffles Hospital on 19 August – Sir Michael had a walking stick and appeared to require assistance in his movements – he is unable to personally attend the Supreme Court hearing on taking of evidence in Port Moresby due to prior commitments in Singapore.	
3	Katrina Louise Low	Legal Practitioner, Freehills, Brisbane	(8)	
Evidence: She was hospitalised at Raffles Hospital in June 2009 and recently sent an email requesting her medical records – she received a reply the same day, indicating there was little difficulty in obtaining such records – she is unable to personally attend the Supreme Court hearing on taking of evidence in Port Moresby due to work commitments.	
4	Venessa Vee 	Para-legal/Clerk, Young & Williams Lawyers, Port Moresby	(8)	
Evidence: As part of her responsibilities she ensures that newspapers are kept and stored properly – she researched the PNG daily newspapers from 14 March to 1 August for stories relating to Sir Michael and his absence from PNG and made copies and has annexed them to her affidavit.	

5	OTHER EXHIBITS

10. This evidence is summarised in the following table.

TABLE 5: EXHIBITS OTHER THAN AFFIDAVITS

No	Description 	Contents 	Category	
				
1	OS No 649 of 2011: 02.08.11	This was an originating summons filed on 2 August: Hon Samuel Abal v Hon Jeffery Nape and Hon Peter O'Neill, seeking a declaration that the election of Mr O'Neill as Prime Minister was in breach of the Constitution and related declarations and orders.	(5)	
2	Media statement: A T Somare: 28.06.11	This is the statement that was the centrepiece of the press conference of 28 June. It states, amongst other things:

On behalf of Lady Veronica Somare and the rest of Sir Michael Somare's family I would like to inform the public that it is our wish that Sir Michael will now pursue a life in retirement after nearly 50 years of active politics due to medical reasons and the uncertainty of the recovery period … it is our family's collective desire that Sir Michael be allowed to recover at his own pace, and therefore retire.	(8)	
3	Notice of motion in OS No 728 of 2011: 12.09.11	This is an application in the proceedings Grand Chief Sir Michael Thomas Somare v Hon Jeffery Nape, Don Pandan and Peter O'Neill, seeking an interim injunction and other interim orders regarding the pronouncements of the Speaker in the Parliament on 6 September.	(6)	
4	Judgment of David J in OS No 728 of 2011: 20.09.11 	This is the ruling of the National Court, refusing the application for interim relief regarding the pronouncements of the Speaker in the Parliament on 6 September.	(6)	
5	Letter from Thomas Lawyers to PKA Lawyers: 02.09.11	This letter notified PKA that the Supreme Court directed on 2 September that their client, the referrer, provide Sir Michael's medical reports and records and requested that PKA liaise with Raffles Hospital to obtain the reports and records.	(8)	
6	Letter from Thomas Lawyers to Nor Ainon: 02.09.11	This is a letter to the Executive of the International Patients Centre, Raffles Hospital, requesting all medical reports and records in the possession of Raffles Hospital regarding Sir Michael's medical condition.	(8)	
7	Letter from Thomas to Sean Yu Chou: 02.09.11	This is a letter to a law firm in Singapore requesting assistance in obtaining all medical reports and records in the possession of Raffles Hospital regarding Sir Michael's medical condition.	(8)	
8	Letter from PKA Lawyers to Thomas: 05.09.11	This letter is in response to Thomas Lawyers' letter of 2 September and notified Thomas Lawyers that PKA's client, Sir Michael Somare, was not obliged to provide his private and confidential medical records and suggested that the proper procedure would be to write to Raffles Hospital, which may then seek instructions from Sir Michael – however, it was noted that Sir Michael may still not authorise the release of his records.	(8)	

PART B: FINDINGS OF FACT

11. I make the following findings of fact regarding the nine categories of fact set out at the beginning of this statement. The paragraph numbers in the statement of agreed and disputed facts to which the each category of fact relates are set out at the beginning of each finding.

1	THE LEADERSHIP TRIBUNAL PROCEEDINGS OF MARCH 2011 [Paragraph Nos 45, 46, 50, 51(a)]

12. These issues of fact are no longer in dispute. On 21 February a Leadership Tribunal was appointed by the Chief Justice to inquire into and determine allegations of misconduct in office against Sir Michael. The Tribunal commenced its inquiry on 10 March. On 21 March the Tribunal found Sir Michael guilty of breaches of Section 4 of the Organic Law on the Duties and Responsibilities of Leadership. On 24 March 2011 the Tribunal recommended that Sir Michael be suspended from the office of Prime Minister without pay for a period of 14 days. On 31 March the Governor-General suspended Sir Michael, without pay, for the period from 14 to 28 April.

2	MEETINGS OF THE PARLIAMENT IN 2011 [Paragraph Nos 28, 29, 33]

13. These issues of fact are no longer in dispute. Meetings of the Parliament occurred on the following dates:

•	10, 11, 12, 13, 17, 18, 20, 24, 25, 26 and 27 May 2011 ("the May meeting");
•	14, 16, 17, 21, 22, 23 and 24 June 2011 ("the June meeting");
•	2 and 9 August 2011 ("the August meeting").

14. Those three meetings referred to were consecutive meetings of the Parliament. The August meeting was the first meeting of the fifth year of the current Parliament. The August meeting of Parliament concluded on 9 August 2011.

3	SIR MICHAEL'S ABSENCES FROM THE PARLIAMENT IN 2011 [Paragraph Nos 49, 53, 55, 58, 75]

15. These issues of fact are largely undisputed. It is agreed and I find as a fact that notwithstanding a public statement of Sir Michael reported on 13 April he did not inform the public in relation to his surgery at any time up to 2 August. On 27 May, the last day of the May meeting, a question was asked in the Parliament as to whether there was any reason the procedure in Section 142(5)(c) of the Constitution could not be followed given the absence of the Prime Minister for health reasons. The question was ruled out of order by the Deputy Speaker. Between 6 August and 6 September 2011 Sir Michael did not make any request to the Parliament in respect of his absences from meetings of the Parliament in 2011 or provide any information to the Parliament in respect of his likely future attendances at meetings of the Parliament.

16. There is only one disputed set of issues of fact under category (3): paragraph 55, which is whether the Parliament from 17 May until the end of August received any medical reports or was informed about the medical condition or status of Sir Michael or when he might return to work and whether there were many visits to Sir Michael in Singapore paid for by the Executive and whether Mr Arthur Somare also visited his father, Sir Michael, in Singapore. As to these matters I find:

•	the Parliament did not in the period from 17 May until 31 August receive any medical reports or was otherwise informed about Sir Michael's medical condition or status or when he might return to work;

•	it appears that there were a number of visits to Sir Michael in Singapore paid for by the Executive, however the evidence is not sufficiently probative to make a conclusive finding on this issue and in my opinion it is not materially relevant to the determination of any of the questions in the Reference;

•	Mr Arthur Somare visited his father, Sir Michael, at least three times in Singapore in the period from April to September; it appears that the costs of those visits were paid for by the Executive, however the evidence is not sufficiently probative to make a conclusive finding on this issue and in my opinion it is not materially relevant to the determination of any of the questions in the Reference.

4	STEPS TAKEN BY THE NATIONAL EXECUTIVE COUNCIL REGARDING SIR MICHAEL'S ABSENCE AND HIS HEALTH [Paragraph No 40]

17. This issue of fact is no longer in dispute, owing to the acceptance by all parties of the evidence pertaining to this matter by Hon Sam Abal MP. I find that Mr Arthur Somare's public statement on behalf of the Somare family on 28 June that their desire was for Sir Michael to retire on medical grounds, motivated the then Acting Prime Minister and Chairman of the National Executive Council, Mr Abal, to initiate a process that could clearly deal with the question of Sir Michael's future as Prime Minister. Statutory Business Paper No 58 of 2011 was prepared. As part of this process Professor Sir Isi Kevau prepared a preliminary medical report in his capacity as Sir Michael's personal doctor. On 29 July the National Executive Council advised the Governor-General, Sir Michael Ogio, to request the Papua New Guinea Medical Board to appoint two specialist doctors to conduct medical examinations and to report to the Governor-General within 28 days and to not suspend Sir Michael as Prime Minister. The Governor-General, acting with and in accordance with the advice of the National Executive Council, made a decision in those terms on 1 August 2011, which was published in the National Gazette.

5	EVENTS OF 2 AUGUST 2011 RELATING TO THE APPOINTMENT OF MR O'NEILL AS PRIME MINISTER [Paragraph Nos 30, 31, 32, 39]

18. These issues of fact are no longer in dispute, subject to the disputed legal validity and effectiveness of Mr O'Neill's appointment and related decisions of the Governor-General. Hon Sam Abal, then the Deputy Prime Minister, became Acting Prime Minister when Sir Michael left the country on 29 March. On the afternoon of 2 August 2011 the Parliament decided that there was a vacancy in the office of Prime Minister and elected Hon Peter O'Neill MP as Prime Minister. Mr O'Neill was the same afternoon sworn in as the Prime Minister by the Governor-General, Sir Michael Ogio, in accordance with a decision of the Parliament. The appointment of Mr O'Neill was gazetted and published in the National Gazette (No G205) on 3 August 2011. Also on 3 August the Governor-General dismissed a number of Ministers, appointed the Hon Belden Namah Deputy Prime Minister, and appointed a number of other Ministers. Those dismissals and appointments, too, were gazetted and published in the same Gazette of 3 August 2011. Since 2 August 2011 Mr O'Neill has carried out the duties and responsibilities of the office of Prime Minister.

6	EVENTS OF 6 SEPTEMBER 2011 RELATING TO THE DECLARATION OF A VACANCY IN THE EAST SEPIK PROVINCIAL SEAT [Paragraph Nos 38, 42, 43, 44]

19. These issues of fact are largely undisputed. It is agreed and I find as a fact that Sir Michael is and was at all material times, at least until 6 September 2011, the duly elected Member for East Sepik Provincial.

20. On 6 September 2011 Sir Michael attended a sitting of the Parliament. On the same day the Clerk of the Parliament, Mr Don Pandan, responded to a request for advice from Sir Michael's lawyers, advising that the minutes of proceedings of the Parliament as required by Standing Orders 30 for 2011 show that Sir Michael had been absent for only the June and August 2011 meetings of Parliament. He was granted leave by the Parliament for the May 2011 meeting. Mr Pandan stated that 'When he attends today's meeting of Parliament he will avoid being absent for three consecutive meetings of Parliament and thus avoid being disqualified as the member of Parliament for the East Sepik seat, pursuant to the requirements of Section 104(2)(d) of the Constitution.'

21. There is only disputed issue of fact under category (6): paragraph 44, which is whether the Speaker, Hon Jeffery Nape MP, ruled in the Parliament on 6 September that Sir Michael had ceased to be a member of the Parliament. Mr Kerr, for the 4th intervener, submitted that the Speaker's ruling was unclear. However, I find, as a fact, that the Speaker ruled in sufficiently clear terms that Sir Michael had ceased to be a member of the Parliament. The Speaker did so by stating (as recorded in draft Hansard, annexure E to an affidavit of Sir Michael, exhibit 20): "it is now my solemn duty to advise you [addressing Sir Michael] that by operation of Section [104(2)(d)] of the Constitution, the East Sepik Provincial seat is now vacant". The Speaker's reasons were also sufficiently clear: that Sir Michael had been absent without leave of the Parliament, during the whole of three consecutive meetings of the Parliament and that the Parliament had not decided to waive this rule.

7	MEDIA REPORTS OF EVENTS RELATING TO THE REFERENCE [Paragraph Nos 47, 48, 56, 57, 59, 63, 64]

22. This issue of fact is no longer in dispute, at least to the extent that it is agreed that:

•	Between 1 April and the first day of the May meeting there were reports in the media concerning Sir Michael's health;

•	During the May meeting of the Parliament the media contained further extensive reports concerning Sir Michael's condition.

•	After the May meeting and throughout the June meeting the media contained frequent reports and editorial comment concerning Sir Michael's alleged health and its impact on the functioning of Parliament.

•	Mr Arthur Somare's statement and press conference of 28 June was widely reported in the media and caused further reports in the media as to the consequences for the National Government which continued until 2 August 2011.

23. I accordingly find as a fact that from 1 April to 2 August there was extensive media coverage of issues relating to Sir Michael's health, examples of which are provided in the above paragraphs of the statement of agreed and disputed facts. It has not been practicable for me to make a finding of fact as to the correctness of each of the media reports. Any findings that I were to make would have, in my opinion, no relevance to the determination of the questions forming the Reference. None of the parties has alerted me to any particular media report that needs correction. I therefore make no finding as to the truth or correctness of the contents of the reports.

8	SIR MICHAEL'S MEDICAL TREATMENT AND HIS SOUNDNESS OF MIND [Paragraph Nos 41, 51(b), 52, 54, 60, 61, 62, 67, 68, 69, 70, 71, 72, 73, 74]

24. Much of this category of issues of fact is contentious. The issues can be reduced to these questions:

(a)	Did Sir Michael experience the onset of heart failure during the Leadership Tribunal proceedings? [Paragraph No 52]

(b)	When was Sir Michael hospitalised, and for what periods was he in intensive care? [Paragraph No 41]

(c)	During what period, if any, was Sir Michael unable to perform the duties of the office of Prime Minister? [Paragraph No 51(b)]

(d)	Are Hon Arthur Somare's various public statements regarding Sir Michael's health and condition an accurate reflection of Sir Michael's health and condition? [Paragraph Nos 60, 61, 62, 67, 68, 74]

(e)	What were the costs to the Executive of Sir Michael's hospitalisation and treatment, including costs of travel and accommodation of family members and other associates? [Paragraph No 54]

(f)	Has Sir Michael suffered brain damage and a reduced capacity to reason and make decisions? [Paragraph No 69]

(g)	Was Sir Michael, in the period since 30 March, or in any part of that period, incapable of managing his affairs or lacking capacity to carry out the functions and duties of Prime Minister or make an informed decision whether to resign? [Paragraphs 71, 72, 73]

(h)	Was Sir Michael, in the period from 30 March to 6 September 2011, or in any part of that period, of unsound mind? [Paragraph 70]

25. Of those questions, (h) is the most relevant to the questions that form the Reference, as questions 12 to 17 of the Reference raise the issue of Sir Michael's soundness of mind and relate to whether he at any time became unqualified to remain a member of the Parliament within the meaning of Section 103(3)(b) and whether he ceased to be a member of the Parliament by reason of Section 104(2)(f) of the Constitution.

26. Section 103(3)(b) (qualifications for and disqualifications from membership) states:

A person is not qualified to be, or to remain, a member of the Parliament if … he is of unsound mind within the meaning of any law relating to the protection of the persons and property of persons of unsound mind. 

27. Section 102(4)(f) (normal term of office) states:

The seat of a member of the Parliament becomes vacant … if he becomes disqualified under Section 103 (qualifications for and disqualifications from membership).

28. I expect that for the purposes of the Reference the 1st intervener and the parties aligned with him will be arguing the affirmative propositions: that Sir Michael became unqualified to remain a member of the Parliament when he became of unsound mind and that his seat thereupon became vacant. Those parties will need to prove that as a matter of fact and law Sir Michael became of unsound mind. In these circumstances, for the purposes of determining the question I have identified as (h) above, and the related questions of fact in this category of issues of fact, the general principle of evidence that 'he who asserts bears the onus of proof' should be invoked (Shaw v Commonwealth of Australia [1963] PNGLR 119; Constitutional Reference No 3 of 1978; In the matter of s11(3) of the Inter–Group Fighting Act 1977 [1978] PNGLR 421; SCR No 4 of 1980; Re Petition of MT Somare (No 2) [1982] PNGLR 65; Richard Manui v ANZ Banking Group (PNG) Ltd (2008) N3405). Thus the 1st intervener and the parties aligned with him bear the onus of proving the disputed facts. Though these proceedings are not a normal type of civil proceeding I consider it is appropriate to apply the civil standard of proof: on the balance of probabilities. I now address each of the questions (a) to (h) above.

(a)	Did Sir Michael experience the onset of heart failure during the Leadership Tribunal proceedings? [Paragraph No 52]

29. I find no evidence to support a finding of fact in those terms. The onus of proof has not been discharged.

(b)	When was Sir Michael hospitalised, and for what periods was he in intensive care? [Paragraph No 41]

30. This is largely uncontentious. Sir Michael was hospitalised from 30 March to late August. The precise date of discharge is unclear. Drs Sim and Ng say it was 22 August (table 2, Nos 4 and 5). Professor Kevau suggests it was 27 or 28 August (table 1, No 5). A finding that it was late August is sufficient. The train of events in that five month period was:

•	30 March to 21 April: Sir Michael was being managed in the general ward;

•	21 April to 28 April: in theatre – first major operation: aortic valve replacement surgery – then in ICU for recovery;

•	28 April to 4 May: Sir Michael was returned to the general ward, making good recovery;

•	4 to 11 May: Sir Michael had a cardiac arrest on 4 May, requiring resuscitation and emergency surgery on 5 May, then was managed in ICU;

•	11 May to early August: Sir Michael had another bleeding episode on 11 May, requiring further emergency surgery (the third operation), he was again managed in ICU, where over the next two months Sir Michael incurred many complications including renal failure requiring dialysis, infections and breathing difficulties requiring prolonged mechanical ventilation and tracheotomy (performed on 11 June): for this period of almost three months he remained in ICU;

•	Early to late August: Sir Michael was managed in the general ward and made a good recovery. 

31. I find that Sir Michael was hospitalised for approximately five months and that he was in intensive care for approximately three and a half months.

(c)	During what period, if any, was Sir Michael unable to perform the duties of the office of Prime Minister? [Paragraph No 51(b)]

32. He was admitted to hospital as a matter of urgency, when he started experiencing breathlessness. He remained in hospital for five months. He underwent major surgery on three separate occasions and for long periods was unable to communicate. In these circumstances I find that during the whole period of hospitalisation, from 30 March to late August 2011, Sir Michael was unable to perform the duties of the office of Prime Minister.

(d)	Are Hon Arthur Somare's various public statements regarding Sir Michael's health and condition an accurate reflection of Sir Michael's health and condition? [Paragraph Nos 60, 61, 62, 67, 68, 74]

33. It is undisputed that Hon Arthur Somare MP held a press conference and released a press statement on 28 June regarding Sir Michael's health and condition expressing the Somare family's desire that Sir Michael retire from politics due to his poor health and condition and his age and his achievements as a member of the Parliament and Prime Minister and a leader. He repeated his and the Somare family's position in a public statement (a radio interview) on 2 September. I make findings of fact in those terms. I make no finding as to the truth or correctness of the contents of the related media reports.

34. As to whether Hon Arthur Somare's various public statements regarding Sir Michael's health and condition are an accurate reflection of Sir Michael's health and condition (which is a disputed issue arising from paragraph 74 of the statement of agreed and disputed facts), I consider that Mr Somare's press statements were a subjective assessment by a son of his father's condition and cannot be relied on to make a finding of fact that that subjective assessment is correct or otherwise. I therefore find that this is unproven, and that the assertion of fact contained in paragraph 74 is incorrect. 

(e)	What were the costs to the Executive of Sir Michael's hospitalisation and treatment, including costs of travel and accommodation of family members and other associates? [Paragraph No 54]

35. I consider that no finding can be made on this issue due to insufficiency of evidence. In my opinion the question of the amount of costs to the Executive of Sir Michael's hospitalisation and treatment is irrelevant to determination of the questions forming the Reference. 

(f)	Has Sir Michael suffered brain damage and a reduced capacity to reason and make decisions? [Paragraph No 69]

36. In support of the proposition that Sir Michael has suffered brain damage and a reduced capacity to reason and make decisions the 1st intervener and parties aligned with him relied on the evidence of Dr Kerr, and asked the court to note serious deficiencies in the evidence of Professor Kevau and the Singapore doctors and to draw inferences from the refusal of Sir Michael to furnish his medical records and to make its own assessment of Sir Michael's obvious cognitive impairment based on his oral evidence of 13 October 2011.

37. I find that Dr Kerr's evidence is of little probative value. First, she is not a medical practitioner, she is a psychologist with a PhD in neuropsychology. The question of whether Sir Michael suffered brain damage, let alone 'irreversible brain damage', which is the opinion advanced by Dr Kerr in one of her affidavits, is a medical question, on which expert medical opinion is necessary. Secondly, Dr Kerr's evidence was imprecise. She testified that it is likely that for the whole of the period from 4 May to 2 August 2011, Sir Michael suffered irreversible brain damage and a significant reduction in his capacity to reason and make decisions (cognitive ability); was incapable of managing his affairs; lacked the capacity to carry out the functions and duties of the office of Prime Minister and of a parliamentarian; and lacked the capacity to make an informed decision whether or not to resign as Prime Minister or as a parliamentarian. Dr Kerr also gave evidence that a very high level of cognitive ability (thinking, analysing, reasoning) would be necessary if he were to resume a demanding role in public office and that it is questionable whether he has sufficient cognitive capacity and is of sound mind to be able to carry out the duties of a Prime Minister. Dr Kerr did not say with any precision how likely or probable it is that Sir Michael has suffered irreversible brain damage or loss of cognitive functions or what degree of damage or loss of function he would have suffered. Dr Kerr's assumption that a 'very high level of cognitive ability' would be necessary begs the question of what standards of cognitive ability are required of a member of the Parliament? A Prime Minister? Thirdly, Dr Kerr has never examined Sir Michael, so she is in no position to give evidence that he has, in fact, suffered brain damage. Dr Kerr conceded that proper testing would need to be done to determine whether and if so to what extent Sir Michael has suffered brain damage and if there has been a loss of cognitive function whether it is permanent or irreversible. 

38. As to the alleged deficiencies in the evidence of Professor Kevau and the Singapore doctors, Dr Kerr stressed in her evidence that all of those medical practitioners were inexpert in the field of the cognitive effect of the medical trauma incurred by Sir Michael from March to August 2011. This is correct but I consider that it is relevant that a consistent part of the testimony of those medical practitioners is that Sir Michael was from the end of July onwards making a rapid recovery and showing no evident signs of brain damage or any significant loss of cognitive function.

39. I do not agree that any adverse inference should be drawn from Sir Michael's alleged refusal to produce his medical records. I found on the opening day of this hearing that there was no failure to comply with any order of the Supreme Court to produce such documents. The approach taken by Sir Michael and his legal advisers on this issue has been measured and reasonable.

40. Mr Varitimos, for the 5th and 6th interveners, supported by other counsel for the 1st intervener and parties aligned with him, invited me to make an assessment of Sir Michael's level of cognitive ability based on his oral evidence. I was urged by opposing counsel not to do so as, it was submitted, a Judge is not in a position to do so and must make such assessments on expert medical evidence. I am not persuaded by the view that I am in no position to make an assessment. This is the sort of thing that trial Judges in Papua New Guinea do regularly. We are the tribunal of fact, as well as of law. We are authorised to make these sorts of assessments. My assessment of Sir Michael, however, does not accord with that advanced by Mr Varitimos, which was that Sir Michael is an old and sick man who needs to rest and sleep each day, that he is confused about many events that have occurred in the country since his departure at the end of March, that he has no knowledge of affidavits of Dr Marat in these proceedings, that he has no knowledge of orders of the Supreme Court requiring him to produce his medical records, that he cannot recall receiving court documents served on him in Singapore, that he had no clear recollection of what happened to him in Singapore, that he could not remember when he became aware of Hon Arthur Somare's press conference of 28 June and gave conflicting evidence to the court on that issue, that Sir Michael agreed that he was not in his right mind to make a decision whether to retire, that he did not produce any evidence to show that he "beat" the neurological tests that he said he was subject to in Singapore, that he had no knowledge of the National Court proceedings OS No 728 of 2011 that were commenced in his own name. Mr Varitimos's submission was that the manner in which Sir Michael responded to cross-examination corroborated the opinions of Dr Kerr and make it safe to conclude that, in fact, Sir Michael has suffered irreversible brain damage and significant cognitive impairment. I reject that submission. My assessment is that Sir Michael Somare, who was subject to vigorous cross-examination was, in material respects, sharp, alert, quick-witted, but understandably had little recollection of and was confused by dates of events that occurred since March 2011 and was confused about the details of the current court proceedings and related proceedings. He offered a rational explanation of the statements and sentiments of his son, Hon Arthur Somare MP, drawing a distinction between Mr Somare's position as Member for Angoram and his own position as Member for East Sepik and between Mr Somare's role as a member of the family and his own position as head of the family. He clearly stated that he had no wish or intention to resign. He stated these views clearly and coherently without equivocation. Sir Michael's evidence suggests that he has not suffered irreversible brain damage or a reduced capacity to make decisions. 

41. That assessment of Sir Michael's evidence, coupled with the lack of probative value in Dr Kerr's evidence, leads to my finding that it has not been proven that Sir Michael has suffered brain damage, let alone irreversible brain damage, or a reduced capacity to reason and make decisions.

(g)	Was Sir Michael, in the period since 30 March, or in any part of that period, incapable of managing his affairs or lacking capacity to carry out the functions and duties of Prime Minister or make an informed decision whether to resign? [Paragraphs 71, 72, 73]

42. On this question I reiterate my findings in (c) above. Sir Michael was admitted to hospital as a matter of urgency, experiencing breathlessness. He remained in hospital for five months. He underwent major surgery on three separate occasions and for long periods was unable to communicate. In these circumstances I find that during the whole period of hospitalisation, from 30 March to late August 2011, Sir Michael was incapable of managing his affairs and lacking capacity to carry out the functions and duties of Prime Minister or make an informed decision whether to resign.

(h)	Was Sir Michael, in the period from 30 March to 6 September 2011, or in any part of that period, of unsound mind? [Paragraph 70]

43. What does "unsound mind" mean? For the purposes of these proceedings it must mean, as stated in Section 103(3)(b) of the Constitution: "unsound mind within the meaning of any law relating to the protection of the persons and property of persons of unsound mind". This can only reasonably refer to Part VIII (mental disorders and treatment) of the Public Health Act. As I pointed out in In the matter of Four Remandees Allegedly of Unsound Mind of Boram Correctional Institution, East Sepik Province (2006) N3796 this law allows the National Court to order that inquiries be conducted into whether certain persons are of unsound mind and incapable of managing themselves or their affairs. That power is given by Section 86 (order for inquiry by court), which states: 

(1)	On application in accordance with Subsection (3), the Court may make an order directing an inquiry, whether a person who is alleged to be of unsound mind is or is not of unsound mind and incapable of managing himself or his affairs.

(2)	An order under Subsection (1) may contain directions for inquiries concerning—

(a)	the nature of the property belonging to the person alleged to be of unsound mind; and
(b)	the persons who are his relatives or next of kin; and
(c)	the time during which he has been of unsound mind; and
(d)	such other matters as to the Court seem proper.

(3)	An application for an order under Subsection (1) may be made by—

(a)	a person related by blood or marriage to the person alleged to be of unsound mind; or
(b)	an officer authorized for the purpose by the Minister.

45. The Act contains detailed procedures in Sections 87 to 92 about how such inquiries are conducted. If the National Court makes a finding that a person is of unsound mind and incapable of managing his affairs, Section 108 (reception on order of court) provides:

Where, on an inquiry under this Part, a person has been found by the Court to be of unsound mind and incapable of managing himself or his affairs, the Court—

(a)	shall—

(i)	make an order for him to be received into a mental hospital; and
(ii)	send him in suitable custody, together with the order for his reception, to the mental hospital named in the order; or

(b)	if a friend or relative of the person undertakes in writing, to the satisfaction of the Court, that he will be properly taken care of and will be prevented from doing injury to himself or others—may make him over to the care of the friend or relative.

46. Thus the National Court can order that the person be put into a mental hospital (established under Section 82(a)) or into the care of a friend or relative. 

47. I accept the submission of Mr Kerr that for a member of the Parliament to be regarded as "of unsound mind" there must be an order to that effect by the National Court. There has been none in the present case, therefore, as a matter of fact, Sir Michael is not and has never been of unsound mind. If I am wrong on the need for the existence of a National Court order – and I realise that in expressing that view I have ventured into a matter that is, inevitably, a question of law – I consider that to be regarded as of unsound mind a member of the Parliament would need to be shown to be experiencing such a degree of mental infirmity (arising, for example, out of a psychosis or other psychiatric disorder) as to make him reasonably liable to having an order by the National Court under Part VIII of the Public Health Act made in relation to him or a high degree of permanent or long-term cognitive impairment, such that he is incapable of managing his own affairs. The evidence shows that Sir Michael falls into none of these categories. It is true that during the period of his hospitalisation – as I have found already – he was incapable of managing his own affairs. But his recovery has been rapid and positive and the prognosis is favourable.
 
48. I find as a fact that Sir Michael Somare has not at any material time been of unsound mind and is not of unsound mind.

9	DECISIONS AND RESOLUTIONS OF THE REFERRER [Paragraph Nos 34, 35, 36, 37, 65, 66]

49. Much of this category of issues of fact is contentious. The issues can be reduced to these questions:

(a)	Has the referrer passed a resolution in accordance with the recommendation of 4 August 2011? [Paragraph No 34] 

(b)	Was the reference filed on 5 August 2011 purportedly pursuant to a resolution of the East Sepik Provincial Assembly dated 4 August 2011? [Paragraph No 35]

(c)	Was an amended special reference filed on 15 August 2011 purportedly pursuant to a resolution of the East Sepik Provincial Executive dated 4 August 2011? [Paragraph No 36]

(d)	Has the reference been brought with the authority of the East Sepik Provincial Executive? [Paragraph No 37]

(e)	Is it correct that not all of the members of the East Sepik Provincial Executive attended the meeting of 4 August 2011? [Paragraph No 65]

(f)	Is it correct that at a meeting on 4 August some members of the referrer by resolution "recommended that the (referrer) file a Supreme Court reference" in relation to the election by the Parliament of Mr Peter O'Neill as Prime Minister on 2 August 2011? [Paragraph No 66]

50. As to the onus of proof I consider that, as it is the 1st intervener and parties aligned with him who has raised these issues with a view to asserting that the reference has not been validly commenced with the authority of the referring authority, he and the parties aligned with him bear, by virtue of the 'he who asserts must prove' principle outlined above, the onus of proof on these questions of fact. I now address each of the questions (a) to (f) above.

(a)	Has the referrer passed a resolution in accordance with the recommendation of 4 August 2011? [Paragraph No 34] 

51. Yes. I find that it is clear on the evidence of Governor Waranaka, Mr Mosoro and Mr Sino that there was a meeting of the referrer on the night of Thursday 4 August in Wewak, that the members of the PEC convened at 7.00 pm, that the Governor called the meeting to order at or about 9.00 pm, that the meeting concluded at about 11.30 pm and that as a matter of fact the PEC decided to file a Section 19 reference the purpose of which was to challenge the decision of the Parliament to declare a vacancy in the office of Prime Minister, previously held by Sir Michael Somare, and to elect Hon Peter O'Neill MP as Prime Minister. The decision was erroneously recorded as a recommendation. However, it is sufficiently apparent that the members of the PEC understood that they had, by virtue of Section 19(3)(eb) of the Constitution, authorised a challenge to Mr O'Neill's election. 

(b)	Was the reference filed on 5 August 2011 purportedly pursuant to a resolution of the East Sepik Provincial Assembly dated 4 August 2011? [Paragraph No 35]

52. Yes. It is no longer disputed that the reference was filed on that day, purporting to be filed pursuant to a resolution of the East Sepik Provincial Assembly. This was an error on the part of the lawyers who drafted the reference.

(c)	Was an amended special reference filed on 15 August 2011 purportedly pursuant to a resolution of the East Sepik Provincial Executive dated 4 August 2011? [Paragraph No 36]

53. Yes. It is no longer disputed that an amended reference was filed on that day, purporting to be filed pursuant to a resolution of the East Sepik Provincial Executive.

(d)	Has the reference been brought with the authority of the East Sepik Provincial Executive? [Paragraph No 37]

54. It is submitted by the 1st intervener and parties aligned with him that the minutes and resolution of the meeting of the East Sepik Provincial Executive do not evidence any authority to bring the reference. The minutes and resolution are inconsistent, casting doubt on their authenticity, and they are confusing and defective as the resolution only records a decision to recommend the bringing of a reference. It was also submitted that the meeting, if it took place, lacked a quorum.

55. As to the quorum point I find as a fact that the practice and custom of the PEC was that a quorum was eight of the 15 members. There is no provision of the Constitution or the Organic Law on Provincial Governments and Local-level Governments that expressly requires that the quorum is the full membership of the PEC. There are inconsistencies in the minutes and the resolution but they are better regarded as a reflection of the urgency of the meeting and the fact that the members and chairman and the cabinet secretary and the lawyers present were under great pressure and were prone to making mistakes in the recording of what was decided than as evidence of prevarication or deceit or a lack of appreciation of the powers of the Executive Council. 

56. In making a finding of fact on this issue I have considered the decisions of the Supreme Court in SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917 and in Reference by the Attorney-General and Principal Legal Adviser to the National Executive (2010) SC1078. In both cases a Section 19 reference was struck out for not being brought with the authority of the referring authority. The Fly River case is particularly pertinent as the Supreme Court stated: 

In the case of a reference by a Provincial Executive, Order 4, Rule 1(e) [of the Supreme Court Rules] would be complied with if the Provincial Governor signed it for and on behalf of the Provincial Executive Council and referred to and described (eg by date and resolution number) the decision of the Provincial Executive Council to make the reference. This is necessary as it is the Provincial Executive that is the authority entitled to make the reference – not the Provincial Governor. Section 19(3)(eb) of the Constitution – the source of power of a Provincial Executive to make a reference – must be interpreted and applied consonantly with Sections 23 and 24 of the Organic Law on Provincial Governments and Local-level Governments – which establishes the Provincial Executive Council as the executive arm of each Provincial Government, and prescribes its composition, functions and procedures and provides that the Governor is the Chairman of the Council. 

57. I find as a fact the present Reference meets those requirements and therefore this reference is brought with the authority of the East Sepik Provincial Executive. 

(e)	Is it correct that not all of the members of the East Sepik Provincial Executive attended the meeting of 4 August 2011? [Paragraph No 65]

58. Yes. Twelve of the 15 members attended. This is no longer disputed. I consider that as a matter of fact, this constituted a quorum according to the practices and custom of the East Sepik Provincial Executive Council. I make no finding on the question of whether, in law, this met the quorum requirements. 

(f)	Is it correct that at a meeting on 4 August some members of the referrer by resolution "recommended that the (referrer) file a Supreme Court reference" in relation to the election by the Parliament of Mr Peter O'Neill as Prime Minister on 2 August 2011? [Paragraph No 66]

59. I find that this is a correct, but misleading, statement of fact. The resolution, as recorded, was in terms of a recommendation, but the intent and purpose of the PEC's decision was to resolve to file a Section 19 reference.

PART C – STATEMENT OF FACT IN RELATION TO EACH ISSUE OF FACT

60. I now formally record my findings on each of the issues of fact in the statement of agreed and disputed facts on which I have been directed to take evidence and make findings.

TABLE 6: FINDINGS ON EACH ISSUE OF FACT IN PARAGRAPHS 28 TO 75 OF THE STATEMENT OF AGREED AND DISPUTED FACTS 

61. Column 1 gives the paragraph number in the statement of agreed and disputed facts. Column 2 recites the issue of fact as it appears in that statement. Column 3 provides my categorisation of the issue of fact according to the categories identified at the beginning of this statement. Column 4 indicates whether the issue of fact is still disputed, and where it is, summarises my finding of fact.

No	Issue of fact 	Category	Finding 	
28	Meetings of Parliament occurred on the following dates:

a.	On 10, 11, 12, 13, 17, 18, 20, 24, 25, 26 and 27 May 2011 ("the May meeting")

b.	On 14, 16, 17, 21, 22, 23 and 24 June 2011 ("the June meeting")

c.	On 2 and 9 August 2011 ("the August meeting").	(2)	Correct. No longer disputed. 	
29	The three meetings of Parliament referred to were consecutive meetings of the Parliament. The August meeting was the first meeting of the fifth year of the current Parliament.	(2)	Correct. No longer disputed.	
30	On the afternoon of 2 August 2011 Mr O'Neill was sworn in as the Prime Minister by the Governor-General, Sir Michael Ogio in accordance with a decision of the Parliament.	(5)	Correct. No longer disputed, subject to the disputed legal validity and effectiveness of the appointment.	
31	The appointment of Mr O'Neill was gazetted and published in the National Gazette (No G205) on 3 August 2011. On the latter date the Governor-General dismissed a number of Ministers, appointed the Hon Belden Namah Deputy Prime Minister, and appointed a number of other Ministers. Those dismissals and appointments, too, were gazetted and published in the same Gazette on 3 August 2011.	(5)	Correct. No longer disputed, subject to the disputed legal validity and effectiveness of the appointments.	
32	Since 2 August 2011 Mr O'Neill has carried out the duties and responsibilities of the Office of Prime Minister.	(5)	Correct. No longer disputed, subject to the disputed legal validity and effectiveness of the appointment.	
33	The August meeting of Parliament concluded on 9 August 2011.	(5)	Correct. No longer disputed.	
34	The referrer has not passed a resolution in accordance with the recommendation of 4 August 2011.	(9)	Incorrect: a resolution to file the Section 19 reference was, in fact, made by the Referrer on 4 August.	
35	On 5 August 2011 this reference was filed in the Supreme Court purportedly pursuant to a resolution of the East Sepik Provincial Assembly dated 4 August 2011.	(9)	Correct. No longer disputed that the reference was filed on that day, purporting to be filed pursuant to a resolution of the East Sepik Provincial Assembly.	
36	On 15 August 2011 an Amended Special reference was filed purportedly pursuant to a resolution of the East Sepik Provincial Executive dated 4 August 2011.	(9)	Correct. No longer disputed that an amended reference was filed on that day, purporting to be filed pursuant to a resolution of the East Sepik Provincial Executive.	
37	This reference is brought with the authority of the East Sepik Provincial Executive.	(9)	Correct. The referrer, the East Sepik Provincial Executive, has, as a matter of fact, authorised the Reference.	
38	Sir Michael is and was at all material times the duly elected Member of Parliament for the East Sepik regional electorate.	(6)	Correct, subject to the dispute as to whether Sir Michael's seat has been vacated.	
39	During Sir Michael's absence the Hon Sam Abal has been Acting Prime Minister.	(5)	Correct, at least until 2 August 2011. No longer disputed.	
40	The NEC commenced the procedure under s 142(5)(c) of the Constitution on 29 July 2011.	(4)	Correct. No longer disputed. subject to the disputed relevance of the fact.	
41	Sir Michael remained hospitalized in Singapore continuously from 30 March 2011 until at least 26 August 2011 in that during such period Sir Michael … was in intensive care for the majority of the period from 21 April until at least 19 August 2011.	(8)	Correct.	
42	On 6 September 2011 Sir Michael Somare attended the sitting of Parliament in the Parliament Chamber on that day.	(6)	Correct. No longer disputed, subject to the disputed relevance, legal effectiveness and validity of the Clerk's advice.	
43	On 6 September 2011 the Clerk of Parliament, Mr Don Pandan, wrote a letter to Posman Kua Aisi Lawyers advising as follows:

I confirm that my records constituting the minutes of proceedings of the Parliament as required by Standing Orders 30 for 2011 show that Sir Michael has been absent for only the June and August 2011 meetings of Parliament. He was granted leave by the Parliament for the May 2011 meeting.

I confirm that when Sir Michael attends today's meeting of Parliament he will avoid being absent for three consecutive meetings of Parliament and thus being disqualified as the member of Parliament for the East Sepik Regional Seat, pursuant to the requirements of Section 104(2)(d) of the Constitution.	(6)	Correct. No longer disputed.	
44	On 6 September 2011 the Second Intervener ruled in Parliament that the Eighth Intervener had ceased to be a member of Parliament.	(6)	Correct. This was, as a matter of fact, the ruling that the Speaker made on 6 September.	
45	On 21 February 2011 a Leadership Tribunal was appointed by the Chief Justice to inquire into and determine allegations of misconduct in office by Sir Michael Somare.	(1)	Correct. No longer disputed, subject to the disputed relevance of the fact.	
46	The Leadership Tribunal commenced its inquiry on 10 March 2011.	(1)	Correct. No longer disputed, subject to the disputed relevance of the fact.	
47	Between 1 April and the first day of the May meeting there were reports in the media concerning Sir Michael's health, including the following:

a.	On 13 April 2011, the Post-Courier reported a public statement issued by Sir Michael saying: "I note that many people are concerned about my health and I wish to make it clear to everyone that I am in very good hands medically in Singapore. It is normal that I have quarterly checks per year and this is no exception. I may have to undergo some surgery but will advise the public of this in due course";

b.	On 20 April the Post-Courier reported a public statement by the Hon Sam Abal in the following terms: "Acting Prime Minister Sam Abal yesterday cleared speculation over the health of Sir Michael when he said the PM would go through an operation on the next few days. … adding the operation was a medical procedure and nothing serious but he was 'going under the knife. We hope he goes through the operation well and be back on deck next week. He is well and jubilant and this is all part of medical examinations and medical procedure'";

c.	On 28 April the Post-Courier in an editorial, reported that a rumour had spread in PNG in the preceding week that Sir Michael had collapsed and died;

d.	On 5 May 2011 the Post-Courier reported that Sir Michael was believed to have left hospital in Singapore and was expected to attend in Parliament when it sat on 10 May 2011.	(7)	Correct. No longer disputed. However, no finding is made as to the truth or correctness of the contents of the reports.	
48	True copies of newspaper reports in the Post-Courier and The National newspapers in this period are included in Annexures AM 9 and AM 10 to the affidavit of Dr Allan Marat made 13 September 2011.	(7)	Correct. No longer disputed. However, no finding is made as to the truth or correctness of the contents of the reports.	
49	Notwithstanding the public statement of Sir Michael reported on 13 April 2011 he had not informed the public in relation to his surgery at any time up to 2 August 2011.	(3)	Correct. No longer disputed. However, no finding is made as to the truth or correctness of the contents of the reports.	
50	On 21 March 2011 the Leadership Tribunal found Sir Michael Somare guilty of breaches of the Leaders duty under s 4 of the Organic Law on Leadership. On 24 March 2011 the Leadership Tribunal recommended that Sir Michael be suspended from the office of Prime Minister without pay for a period of 14 days commencing 4 April 2011.	(1)	Correct. No longer disputed, subject to the disputed relevance of the fact.	
51	On 31 March 2011 the Governor-General suspended Sir Michael, without pay, for the period from 14 to 28 April 2011.

In that period [14 to 28 April] due to ill health, Sir Michael was, in any event, unable to perform the duties of the office of Prime Minister.	(1)

(8)	(a): Correct. No longer disputed, subject to the disputed relevance of the fact.

(b): Correct. Sir Michael was in Raffles Hospital and had aortic valve replacement surgery on 21 April.	
52	In March 2011, during the Leadership Tribunal proceedings, Sir Michael experienced the onset of heart failure.	(8)	Incorrect. There is no evidence to support a finding in those terms.	
53	The only statement which had been made to the Parliament on the health of Sir Michael up to the passing of that motion was the statement referred to in paragraph 20 above made by Hon Sam Abal on 10 May 2011. There was no advice or statement to the Parliament that Sir Michael had undergone further emergency surgery on 11 May.	(3)	Correct. No longer disputed. However, no finding is made as to the truth or correctness of the contents of the reports.	
54	In the period from April to August 2011 the Executive paid costs and disbursements in relation to Sir Michael's stay and treatment in Singapore in an amount exceeding K3.9 million including airfares of more than K575,000. Those disbursements included airfares and accommodation allowances for the attendance in Singapore of a number of people including the wife of the Hon Sam Abal and officers of the Executive including Ms Betha Somare, media advisor to Sir Michael Somare and Mr Richard Gogo, protocol officer to Sir Michael Somare.	(8)	No finding can be made on this issue due to insufficiency of evidence. Further the issue is considered irrelevant to determination of the questions forming the Reference.	
55	From 17 May until the end of August 2011 the Parliament did not receive any medical reports and was not further informed about the medical condition or status of Sir Michael or as to when he might return to work. This was despite the attendance of the many visits to Sir Michael in Singapore paid for by the Executive and the fact that Mr Arthur Somare also visited his father Sir Michael in Singapore.	(3)	Correct: the Parliament was not informed of Sir Michael's condition after 17 May. However no finding is made as to the reason for this or as to how many visits were made to Singapore or who paid for such visits. There is insufficient evidence to warrant any findings on these matters, which are, in any event, irrelevant to the Reference.	
56	During the May meeting of the Parliament the media contained further extensive reports concerning Sir Michael's condition, including the following:

a.	On 11 May 2011 the Post-Courier reported the statement of the Hon Sam Abal to the Parliament and stated that: "Before yesterday's announcement in Parliament on the real condition of Sir Michael, the health of the country's founding prime minister was a closely kept secret in Government circles and the Somare family".

b.	On 12 May 2011 the Post-Courier reported rumours that Sir Michael might not resume the role of Prime Minister at all and that it was anticipated his absence in Singapore may be a long one.

c.	On 13 May the Post-Courier reported that Sir Michael was still in intensive care and in a coma.

d.	On 16 May 2011 the Post-Courier reported Sir Michael's daughter and media advisor, Ms Betha Somare, as saying it would take a few more weeks for him to recover.

e.	On 17 May the Post-Courier reported the circulation of rumours of Sir Michael's death on 14 and 15 May and a statement by the Hon Sam Abal to dispel them. It reported the Hon Sam Abal as saying:

i.	Sir Michael was still in intensive care;

ii.	he confirmed that Sir Michael's condition had not changed since his statement to the Parliament on 10 May;

iii.	he undertook to make a public statement as soon as Sir Michael was moved out of intensive care; and

iv.	he was expected to be moved out of intensive care "anytime now".	(7)	Correct. No longer disputed. However, no finding is made as to the truth or correctness of the contents of the reports.	
57	True copies of newspaper reports in the Post-Courier and The National newspapers in this period are included in annexures AM 9 and AM 10 to the affidavit of Dr Allan Marat made 13 September 2011.	(7)	Correct. No longer disputed. However, no finding is made as to the truth or correctness of the contents of the reports.	
58	On 27 May, the … last day of the May meeting, a question was asked in the Chamber whether there was any reason why the procedure in s 142(5)(c) could not be followed given the absence of the Prime Minister for health reasons. The question was ruled out of order by the Deputy Speaker.	(3)	Correct. No longer disputed, subject to the disputed relevance of the fact.	
59	After the May meeting and throughout the June meeting the media contained frequent reports and editorial comment concerning Sir Michael's alleged health and its impact on the functioning of Parliament.	(7)	Correct. No longer disputed. However, no finding is made as to the truth or correctness of the contents of the reports.	
60	On 28 June 2011, after the June meeting, Mr Arthur Somare, the son of Sir Michael and a Minister, answered questions as follows:

Journalist: "Minister, would Sir Michael have been a party to this decision by the family? Has he been consulted? Have you talked with him on this particular issue?"

A Somare: "I have not spoken to the Prime Minister in a long time. I have not spoken to my father in a very long time".

Journalist: "Is he aware that this is being done?"

A Somare: "This is the public expression of the family's desire [stutter] of the future of our father, a member of our family, who is not in a position to be able to understand the particular questions that you are posing me." He also said (in Pidgin): "He (Sir Michael) is not in a position where he can talk and understand what I say. Because of this, instead of me and my family keeping PNG in suspense for a long time, we have decided to come out and make it clear to the people, our decision. We think that our father is not in a condition where he can be in a position to continue working, hence this public expression. However we also know that we don't have the power / authority to do anything. This power is with other authorities."	(8)	Correct. No longer disputed. However, no finding is made as to the truth or correctness of the contents of the reports.	
61	A true transcript of the statement made by Mr Arthur Somare in the said press conference [sic] is Annexure AM 12 to the affidavit of Dr Allan Marat made 13 September 2011.	(8)	Correct. No longer disputed. However, no finding is made as to the truth or correctness of the contents of the reports.	
62	At the time of Mr Arthur Somare's statement, the Hon Sam Abal was informed … that Sir Michael was in hospital and "was in no mental and physical condition to make a statement on his own to the nation".	(8)	Incorrect. Mr Abal denied this assertion of fact and his evidence has been accepted.	
63	Mr Arthur Somare's statement was widely reported in the media and caused further reports in the media as to the consequences for the National Government which continued until 2 August 2011.	(7)	Correct. No longer disputed. However, no finding is made as to the truth or correctness of the contents of the reports.	
64	True copies of newspaper reports in the Post-Courier and The National newspapers of Mr Arthur Somare's statement are included in Annexures AM 9 and AM 10 to the affidavit of Dr Allan Marat made 13 September 2011.	(7)	Correct. No longer disputed. However, no finding is made as to the truth or correctness of the contents of the reports.	
65	Not all members of the referrer attended any meeting of it on 4 August 2011.	(9)	Correct. No longer disputed.	
66	At a meeting on 4 August some members of the referrer by resolution "recommended that the (referrer) file a Supreme Court reference" in relation to the election by the Parliament of Mr Peter O'Neill as Prime Minister on 2 August 2011.	(9)	This is a correct, but misleading, statement of fact. The resolution, as recorded, was in terms of a recommendation, but the intent and purpose of the PEC's decision was to resolve to file a Section 19 reference.	
67	On 2 September Mr Arthur Somare made a public statement in the media that he and his family wanted Sir Michael to retire because of his health.	(8)	Correct. No longer disputed. However, no finding is made as to the truth or correctness of the contents of the reports.	
68	A true copy of the interview in which Mr Arthur Somare made the statement referred to is Annexure AM 17 of the affidavit of Dr Allan Marat made 13 September 2011.

On 5 September 2011, in response to a letter from the lawyers for the referrer requesting the medical records in respect of Sir Michael's treatment at the Raffles Hospital in Singapore, Posman Kua Aisi, the lawyers for Sir Michael Somare, advised that Sir Michael "instructs that he is not able to accede to (the) request".	(8)

(8)
	(a): Correct. No longer disputed. However, no finding is made as to the truth or correctness of the contents of the reports.

(b): Incorrect. What Sir Michael's lawyers advised was that even if Thomas Lawyers were to make a request to Raffles Hospital Sir Michael "does not believe he may authorise the release of his records".	
69	On 13 September 2011, Dr M M E Kerr, a neuropsychologist, gave an expert opinion that on the basis of information available to her Sir Michael has suffered brain damage in the period since 21 April 2011 and that his capacity to reason and make decisions is reduced as a result.	(8)	Incorrect. Dr Kerr only gave an opinion on the likelihood that Sir Michael had suffered brain damage and in other respects her evidence is of little probative value..	
70	Sir Michael was in the period from 30 March 2011 to 6 September 2011, or a substantial part of that period, of unsound mind.	(8)	Incorrect. There is insufficient evidence that Sir Michael was at any time of "unsound mind" for the purposes of Section 103(3)(b) of the Constitution.	
71	Sir Michael was in the period from 30 March 2011 to 26 August 2011, or a significant part of it, incapable of managing his affairs.	(8)	Correct.	
72	Sir Michael has lacked the capacity to carry out the functions and duties of the office of Prime Minister from 30 March 2011 to date or a significant part of it.	(8)	Correct.	
73	Sir Michael Somare lacked the capacity during the period 14 April to 2 August 2011, or a significant part of it, to make an informed decision whether to resign as Prime Minister.	(8)	Correct.	
74	The statements made by Mr Arthur Somare referred to in paragraph 60 above accurately described the capacity or condition of Sir Michael:

a.	As at 2 August 2011;

b.	At any time whilst he was in Singapore from 24 March 2011.	(8)	Incorrect. Mr Somare's press statements were a subjective assessment by a son of his father's condition and cannot be relied on to make a finding of fact that that subjective assessment is correct or otherwise.	
75	Between 6 August and 6 September 2011 Sir Michael did not make any request to the Parliament in respect of his absences from meetings of the Parliament in 2011 or provide any information to the Parliament in respect of his likely future attendances at meetings of the Parliament.	(3)	Correct. No longer disputed, subject to the disputed relevance of the fact.	

PART D – CONCLUSION 

62. Seven of the nine categories of disputed issues of fact in the statement of agreed and disputed facts on which I was directed to make findings have proved, upon the taking of evidence, to be largely uncontentious. Two categories have remained in dispute, which have given rise to what appear to be the most relevant questions of fact: (a) whether as a fact, the East Sepik Provincial Executive Council authorised the Reference; and (b) whether Sir Michael Somare has been at any time of unsound mind. On those issues I find:

(a)	that the East Sepik Provincial Executive Council authorised the Reference; and

(b)	that Sir Michael Somare has not at any material time been of unsound mind and is not of unsound mind.

Findings accordingly.
_________________________________________________

Thomas & Co Lawyers: Lawyers for the Referrer
Young & Williams Lawyers: Lawyers for the 1st, 2nd, 5th & 6th Intervener
Vergil L Narokobi: Lawyer for the 3rd Intervener
Kuman Lawyers: Lawyer for the 4th Intervener
John K Gawi Lawyers: Lawyers for the 7th Intervener
Posman Kua Aisi Lawyers: Lawyers for the 8th Intervener