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State v Ramoi (No 2) [1990] PGNC 125; [1990] PNGLR 136; N848 (27 March 1990)

N848

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

GABRIEL RAMOI (NO 2)

Waigani
Brown J

27 March 1990

STATE SERVICES - Ombudsman Commission - Offences - Failure by person summoned to attend before Commission - Failure to attend "without reasonable excuse" - What constitutes reasonable excuse - Absence from country - Knowledge in Commission of absence from jurisdiction - Prior consent to date of attendance not required - Organic Law on the Duties and Responsibilities of Leadership (Ch No 1), s 31.

CRIMINAL LAW - Particular offences - Failure by person summoned to attend Ombudsman Commission - Failure to attend "without reasonable excuse" - "What constitutes reasonable excuse - Absence from country - Knowledge in Commission of absence from jurisdiction - Prior consent to date of attendance not required - Organic Law on the Duties and Responsibilities of Leadership (Ch No 1), s 31.

CONSTITUTIONAL LAW - Leadership Code - Breaches of - Investigation by Ombudsman Commission - Summons to furnish information and produce documents - Failure to attend "without reasonable excuse" - What constitutes reasonable excuse - Organic Law on the Duties and Responsibilities of Leadership (Ch No 1), ss 21, 31.

The Organic Law on the Duties and Responsibilities of Leadership (Ch No 1), (the Organic Law), s 31, provides:

"Failure to attend or produce documents. A person who having been summoned to attend the Ombudsman Commission, other authority or tribunal fails without reasonable excuse the burden of proof of which lies on him to attend the Commission, other authority or tribunal or to produce any documents, books or writings in his custody or control that he is required by the summons to produce is guilty of an offence."

Held:

For the purposes of s 31 of the Organic Law:

(1) absence from the country does not constitute reasonable excuse for failure to attend before the Ombudsman Commission particularly where adequate time existed between the date of the service of the summons and the date fixed for attendance for another date to be fixed;

(2) absence of prior consent by a prospective witness to a suitable hearing date cannot constitute reasonable excuse for failure to attend;

(3) reliance by the prospective witness on mere knowledge in the Ombudsman Commission of his likely absence from the jurisdiction on the date fixed for attendance does not constitute reasonable excuse for failure to attend.

Cases Cited

There are not cases cited in the judgment.

Trial

This was a trial of one, Gabriel Ramoi, Honourable Member for Aitape Lumi Electorate in the National Parliament of Papua New Guinea, by evidence on affidavits, in relation to offences of misconduct in office under the Organic Law on the Duties and Responsibilities of Leadership (Ch No 1), for failure to answer a summons to furnish information and produce documents to the Ombudsman Commission contrary to s 31 of the Organic Law.

Counsel:

C Manek, for the State.
V K Kapa, for the accused.

27 March 1990

BROWN J.: This defendant pleaded not guilty to a charge brought on indictment pursuant to s 21 of the Organic Law on the Duties and Responsibilities of Leadership (Ch No 1), which provides:

"Production of documents etc:

(1) Subject to the provisions of this Section and of Section 22 the Commission or other authority may from time to time require any person who in its opinion is able to give any information relating to any alleged or suspected misconduct in office by a person to whom this law applies that is being investigated by the Commission or other authority to furnish to it that information and to produce any documents, papers or things that in the opinion of the Commission or other authority relate to any matter being investigated by it and that may be in the position or control of that person.

(2) Subsection 1 applies whether or not:

(a) the person is an officer, employee or member of any state service, provincial service, local government body or statutory body; and

(b) the documents, papers or things referred to in that subsection are in the custody or under the control of any state service, provincial service, local government body or statutory body.

(3) The Commission or other authority may by instrument in writing summon any person (including the spouse and the children of the person whose conduct is being examined or investigated) who in its opinion is able to give any information relating to any matter that is being investigated by the Commission or other authority to attend the Commission or other authority at a time and place specified in the summons for examination by it on oath."

Mr Maknek, as counsel for the State, tendered various affidavits which were read without objection. Counsel for the defendant, Mr Kapa, called no evidence.

The question is whether the defendant has failed without reasonable excuse to answer the summons. The offence is created by s 31.

Section 31 provides:

"Failure to attend or produce documents.

A person who having been summoned to attend the Ombudsman Commission, other authority or tribunal fails without reasonable excuse the burden of proof which lies on him to attend the commission, other authority or tribunal or to produce any documents, books or writings in his custody or control that he is required by the summons to produce is guilty of an offence.

Penalty — K500.00 or imprisonment for 3 months."

On the evidence of the affidavits, I am satisfied that the summons was properly served on the defendant. A question which did exercise my mind was whether the non-tender of conduct money would affect my decision. This aspect was not raised by counsel for the defendant and, having regard to the important nature of the summons, I do not consider the absence of the tender would amount to "reasonable excuse".

The defendant’s assertions relied entirely on evidentiary material in the affidavits. He was heard to say, at the time the summons was served, that he would be in Japan on the date required for his attendance. He was not put to proof by prosecuting counsel.

I must ask myself whether this circumstance affords him the defence of reasonable excuse. The time available to the defendant from the time of service on 29 December 1988 to 11 January 1989 gave him ample time in which to make arrangements with the Commission. I have no reason to disbelieve the evidence on affidavit that sensible suggestions were made by officers of the Commission at the time of service (and subsequently to his secretary) that the defendant make a personal approach to the Commission and obtain another date. Mr Ridges of the Commission deposes to his attempts to contact the defendant. There is no evidence of any contact by Mr Gabriel Ramoi. Mr Ramoi was in the country from at least 4 to 8 January and, of course, on the date he was served. There were continuous attempts by Commission officers to contact his witness.

It is not open to the defendant to point to any failure in the Office of the Ombudsman as excusing his non-compliance. The terms of the summons expressly warn him of the consequences:

"Should you fail to attend upon the Commission in accordance with the terms of this summons without reasonable excuse the burden of proof of which lies upon you then you are guilty of an offence and liable, upon prosecution in the National Court, to a penalty of K500.00 or imprisonment for 3 months."

The defendant appears to have treated this summons with disdain from 29 December 1988 to at least 8 January 1989.

I am mindful of the seriousness of such a breach but the defendant has done nothing for his own protection. Having regard to the lapse of time and the opportunity given by the Commission to vary the date if approached, I am satisfied the offence is made out.

Prior consent by any prospective witnesses to a suitable hearing date is not a prerequisite to a valid summons not can it be an excuse. Such an excuse is not reasonable in these circumstances.

Counsel for the defendant also argued that there is a requirement to allege the nature of the complaint pursuant to summonses under s 21. I do not find any support for that assertion on a reading of the section.

On reading s 23, it is clearly the intent of the legislature to seek co-operation of persons to whom this law applies.

Section 23 provides:

"Failure to co-operate.

A person to whom this law applies who obstructs or fails to co-operate to the best of his ability with the Ombudsman or other authority or a tribunal in any investigation or proceeding under or for the purposes of this law (whether in relation to himself or some other person) is guilty of misconduct in office."

The intent of the Ombudsman Commission or Organic Law may be frustrated if it can be argued, as defence counsel asserts, that a person need not attend unless some allegations have been made in writing against him before the issue of any such summons is directed to him. I find such an argument misconceived. Section 21 coupled with s 31 affords me power to deal with this case on the facts at my disposal.

I find the offence has been made out.

ON SENTENCE

Counsel for the accused addressed me and urged me to discharge the accused having regard to his public service, in the interest of his electorate and the effect that it would have on his future status as a lawyer. He is presently attending the Legal Training Institute on completion of which he intends to be provisionally admitted as a lawyer of this Court. I was reminded of the professional consequences which may flow from a conviction of this nature. Counsel further stated that his client had co-operated well with the Commission. This co-operation was disputed by counsel for the State.

There are no specific provisions in the particular Organic Law giving me a discretion to discharge where I find the offence proven. Nor do I consider this to be an appropriate matter where I should exercise any such discretion on a first offender’s provision. I have regard to the matters put by defence counsel. I consider the duty to the public at large, however, requires me to convict. The accused had the opportunity to re-arrange the dates and I also have regard to his plea of not guilty in this Court as not entitling him to any particular consideration. He is accordingly convicted and fined the sum of K200. I direct that the bail amount in the sum of K150 be appropriate towards such fine and thus a balance of K50 remains outstanding.

Verdict: Guilty.

Sentence: Fined K200.

_______________

Lawyer for the State: K Bona, Public Prosecutor.
Lawyers for the accused: K V Kapa, Kei Vuatha Kapa & Associates Lawyers.