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In re Nali (No.2) [2003] PNGLR 11 (29 April 2003)

NATIONAL COURT OF JUSTICE

IN THE MATTER OF - THE REFERENCE BY THE PUBLIC PROSECUTOR PURSUANT TO SECTION 27 (2) OF THE ORGANIC LAW ON DUTIES AND RESPONSIBILITIES OF LEADERSHIP;

AND IN THE MATTER OF - THE TRIBUNAL APPOINTED UNDER SECTION 27 (7) (E) OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP;

AND IN THE MATTER OF - THE ALLEGATIONS OF MISCONDUCT IN OFFICE BY HON. MICHAEL NALI, MP, MEMBER FOR MENDI OPEN AND A MEMBER OF SOUTHERN HIGHLANDS PROVINCIAL ASSEMBLY.
(NO. 2)

WAIGANI: GAVARA-NANU J; MANUE F., MONOULUK SMS

07, 23-25, 28-29 April 2003

PRACTICE AND PROCEDURE – Leadership tribunal proceedings – Plea of no case to answer – Appropriateness of a no case submission in leadership tribunal proceedings – The appropriate test in a no case submission - Differences in the nature of investigations done by the Ombudsman Commission and the Leadership Tribunal.

Facts

The facts are stated in the Report of the judgment of the Tribunal, supra, pp.78 et seq. The defence entered a no case submission after the prosecutor had presented his case. This was objected to by the prosecution on the ground that proceedings of a leadership tribunal are inquisitorial and not accusatorial.

Held

1. The proceedings before the Leadership tribunal is quasi judicial

2. The Tribunal is empowered to make due inquiry into the matters referred to it. It therefore has the unfettered discretion to apply such processes and procedures it may think necessary, including a No Case submission by the defence, if the application of such processes and procedures can fairly and properly dispose of the matters before it.

3. The test to be applied in a No Case submission in Leadership Tribunal proceedings is not the same as applied in criminal proceedings. The reason being that the standards of proof applied differ between the two proceedings and they differ in their character and nature as one is strictly judicial while the other is quasi judicial.

4. Applying the relevant test, the leader has a case to answer in respect to allegations 1, 2 and 4 though not in respect to charge 3.

Papua New Guinea cases cited
In re James Mopio [1981] PNGLR 416.
The State v Paul Kundi Rape [1976] PNGLR 96 .
Timothy Bonga v Justice Sheehan and 2 Ors – N1512.
Counsel

C Sambua, for the Public Prosecutor.
G Sheppard, for the Leader.

29 April 2003

GAVARA-NANU J, FRANK MANUE, PATRICK MONOULUK SMS: At the close of the prosecution case on Friday 25 April, 2003, the defence indicated that it would make a No Case Submission on Monday 28 April, 2003, which was yesterday. Thus upon resumption of the hearing yesterday, the defence asked the Tribunal to discharge the leader, Hon. Michael Nali on each of the four charges of misconduct in office laid against him, on the basis that there was either no or insufficient evidence to substantiate the charges. In other words the defence submitted that there was no case against Hon. Michael Nali on all four charges.

It is convenient that we deal firstly with the issue of whether the leadership tribunal (hereinafter referred to as 'the tribunal') can hear or allow a No Case submission by the defence during the leadership tribunal proceedings as we did yesterday, since this issue was raised by Mr Sambua in the final leg of his submissions. He argued that the Tribunal should not entertain a No Case submission at this stage of the proceedings because if we did, it would amount to abrogating our function to investigate or inquire into the four charges laid against the leader.

The essence of his argument as we understand it was that, if we applied such a process, it would interfere with the process of our inquiry into the charges, and indeed if we found that the leader had no case to answer then that would also be the end of the inquiries.

In support of this argument, it was submitted that the leadership tribunal is different to a judge presiding over a criminal trial where the proceedings are adversarial. Mr Sambua submitted that the tribunal's function is to investigate into the allegations as provided under s 27 (4) of the Organic Law on Duties and Responsibilities of Leadership (hereinafter referred to as 'the Organic Law'), and s 28 (1)(g) (i) of the Constitution. Therefore it is not appropriate for the Tribunal to entertain the No Case submission by the defence. Mr Sambua further submitted that our role is similar to that of the Ombudsman Commission inquiring into the allegations against the leader and in that sense the proceedings before us are inquisitorial.

We do not agree with this submission because the tribunal's role and functions are different to those of the Ombudsman Commission. The proceedings before the tribunal are conducted under the adversarial process where matters are pleaded and evidence and issues are called and litigated by the prosecution and the defence. The prosecution has the onus to prove the matters alleged against the leader to the reasonable satisfaction of the tribunal with clear, cogent and convincing evidence, see In re James Mopio [1981] PNGLR 416. The tribunal must comply with the principles of natural justice and thus must act judicially. The reason being, the tribunal has the power to recommend penalties against the leader which includes dismissal from office, if the leader is found guilty of misconduct in office.

Although the tribunal is not bound by the legal formalities and the technical rules of evidence in its investigations; and may inform itself in such manner as it thinks proper, it still has to act judicially because of the requirement that it must comply with the principles of natural justice. Further more, the standard of proof applied by the tribunal is beyond the balance or the preponderance of probabilities. The proceedings before the tribunal are therefore quasi judicial, see In re James Mopio (supra).

The Ombudsman Commission inquiries or investigations on the other hand being non litigious are not quasi judicial. Also, the Ombudsman Commission only has to be satisfied that the leader is prima facie guilty of misconduct in office. And more over, the findings and the opinions of the Ombudsman Commission have to be ultimately proved before the tribunal, see Timothy Bonga v Justice Sheehan and 2 Ors – N1512.

With such differences in their roles and functions, the proceedings or the inquiries before the leadership tribunal cannot be equated with those before the Ombudsman Commission.

These differences are seen clearly in ss 17 (c), 20, 21 and 27 (4) of the Organic Law and ss 28 and 29 of the Constitution.

This brings us to the next point, viz., the appropriateness of the No Case submission in the leadership tribunal proceedings. Under s 27 (4) of the Organic Law, the tribunal is empowered to make due inquiry into the matters referred to it. In our view, this provision gives the tribunal unfettered discretion to apply such processes and procedures it may consider necessary, including a No Case submission by the defence, if the application of such processes and procedures can fairly and properly dispose of the matters before it.

In the instant case, we consider that allowing the defence to make a No Case submission at this stage of the proceedings was fair because if the leader has No Case to answer, then it means that the prosecution which carries the onus of proof has not adduced the evidence required against the leader in respect of the particular charge. In which case, the leader should not be put through the unnecessary expenses and anxieties of having to defend the allegation(s), which the prosecution cannot prove. Such a process is also not only necessary to narrow the issues for the tribunal but also to ensure that the tribunal does not have to spend unnecessary time in inquiring into such matters.

The test to be applied

The next question that arises is, what is the appropriate test to be applied in a No Case submission in leadership tribunal proceedings?

The test to be applied cannot be the same as those applied in criminal proceedings, as in The State v Paul Kundi Rape [1976] PNGLR 96. The reason being, the standards of proof applied differ between the two proceedings and they differ in their character and nature as one is strictly judicial while the other is quasi judicial.

We therefore do not consider the principles or the tests applied in criminal proceedings are applicable in the leadership tribunal proceedings because to apply them in the leadership tribunal proceedings would effectively be applying the principles or tests which in our view would be too ridged and high.

Nonetheless, the principles applied in Paul Kundi Rape (supra), are helpful in determining the appropriate test. In our view, the test is whether there is any evidence at all to substantiate the matter alleged against the leader, which would warrant the tribunal to inquire into the matter. Because once it is established that there is evidence against the leader on the matter, however small or slight such evidence might be, the leader must answer to the charge or allegation and the tribunal must inquire into the matter. Issue of sufficiency of evidence does not arise at all. Thus a No Case submission should only succeed in a very clear case where there is no evidence at all against the leader on the matter alleged against him.

Thus applying the test as we stated here, we have found that after the close of the prosecution case, Hon. Michael Nali has a case to answer in respect of charges 1, 2 and 4. But in respect of charge 3, we found that there was no evidence at all to substantiate the charge. Therefore Hon. Michael Nali has no case to answer in respect of charge 3.

We briefly state the reasons for our findings in respect of each of the charges or allegations hereunder:-

Allegation 1

We find that Hon. Michael Nali has a case to answer on this allegation because there is evidence that he led the crowd of people who went and assembled at the gate leading to the counting centre, in the evening of 27th March, 1999.

Allegation 2

We find that Hon. Michael Nali has a case to answer on this allegation because there is evidence that in the evening of 27 March, 1999, he demanded the counting to stop and his dressing only in underpants at the time offended some members of the public who were in and around the counting room.

Allegation 3

We find that Hon. Michael Nali has no case to answer on this allegation because there is no evidence at all either directly or indirectly that he instigated the gathering of the crowd at Kagua government station either on 27 March, 1999, or on 28 March, 1999, which allegedly threatened physical violence and destruction of the Kagua government station and other government properties.

Allegation 4

We find that Hon. Michael Nali has a case to answer on this allegation because there is evidence that he was acting together with Mr Luta in demanding that no further counting be conducted both in the evening of 27 March, 1999, and the morning of 28 March, 1999.

It follows that allegation 3 is dismissed. Thus Hon. Michael Nali will only answer to allegations 1, 2 and 4.

Lawyers for prosecution: The Public Prosecutor.
Lawyers for the leader: Maladina Lawyers.