N4421

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO. 435 OF 2011 (JR)

BETWEEN:

HONOURABLE ARTHUR SOMARE
Plaintiff

AND:

HONOURABLE JUSTICE LENALIA, HIS WORSHIP MR ORIM KARAPO & HER WORSHIP MRS NOREEN KANASA
as Chairman and Members of a Leadership Tribunal
First Defendants

AND:

CAMILLUS SAMBUA, ACTING PUBLIC PROSECUTOR
Second Defendant

Waigani: Gabi, J
2011: 6th & 17th October

JUDICIAL REVIEW – application for review of first defendants decision declining to find the "reference" or "statement of allegations" for a Leadership Tribunal hearing as null and void – plaintiff contends state prosecutor, among others, doesn't have power to make referral – whether the reference is defective - Reference is not defective on the basis that it was signed by a State prosecutor - Reference may be amended or withdrawn and presented again - proceeding dismissed with costs – orders made earlier are discharged – tribunal hearing to reconvene as soon as practicable

Cases cited:
PNG Habours Ltd v. Pex Siaoa Avosa (2006) N3065
SCR. No. 1 of 2009 Application by Herman Joseph Leahy (2010) SC1018
SCR. No.3 of 2005 Public Prosecutor's Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011
Smedley v. The State [1980] PNGLR 379
The State v. Esorom Burege (No.1)[1992] PNGLR 481
The State v. Pawa Kombea [1997] PNGLR 494

Text:
De Smith's Judicial Review, Sixth Edition, paragraph 5-138 
Wade & Forsyth, Administrative Law, Tenth Edition, page 259;

Counsel: 

I. Molloy, with K. Kua, for the Plaintiff
S. Koim, for the Defendants 

17th October, 2011

1. GABI J: Introduction: This is an application for judicial review of the decision of the first defendants on 28th July 2011 declining to find that the document known as "Reference" or "statement of allegations" dated 4th July 2011 presented to them under the Organic Law on the Duties and Responsibilities of Leadership (Organic Law) by a State Prosecutor (SP) is null and void and of no effect.

2. On 24th February 2006, the Ombudsman Commission (OC) having formed the opinion that the plaintiff is "prima facie ... guilty of misconduct in office" referred him to the Public Prosecutor (PP) "for prosecution before a tribunal". On 30th August 2006, the PP advised the Chief Justice (CJ) thus: 

"I have considered the matters and pursuant to Section 27(2) of the Organic Law, the matters be proceeded with. I therefore, request that an appropriate Tribunal be appointed by Your Honour to hear and enquire into the above-mentioned matters pursuant to Section 27(7) of the Organic Law." 

3. The CJ appointed a Tribunal to hear and enquire into the allegations. 

4. On 21st June 2011, the acting PP appointed Mr. Kathwa Umpake, a State Prosecutor (SP), as the lead prosecutor to prosecute the plaintiff before the Tribunal.

5. On 4th July 2011, Mr. Umpake presented the Reference or the statement of allegations together with the OC's Statement of Reasons to the Tribunal. The Reference was in the name of the acting PP but signed by Mr. Umpake. 

6. On 5th July 2011, the acting PP wrote to the plaintiff advising "that I have today the 4th day of July 2011 referred to the Chairman of the Tribunal...matters concerning allegations of misconduct in Office...you are hereby suspended from duty on full pay as of today the 4th day of July, 2011." 

7. On 7th July 2011, the first defendants accepted the Reference and the accompanying Statement of Reasons. The plaintiff was suspended from Office effective as of 4th July 2011.

8. The plaintiff's contention is that the Reference dated 4th July 2011 is defective as it was signed by a SP and that the referral process commenced on 4th July 2011. The defendants, on the other hand, argue that the plaintiff was referred to the Tribunal on 30th August 2006 when the PP decided to "bring a proceeding" against the plaintiff and requested the CJ to appoint a Tribunal. The issues are: (i) when did the referral process commence; and (ii) whether the Reference dated 4th July 2011 is defective in that it was signed by a SP. 

Plaintiff's submissions

9. Counsel for the plaintiff made the following submissions: 

(i)	that pursuant to s 177(1)(b) of the Constitution and s 27(2) of the Organic Law, a referral to the Tribunal must be by the PP himself and no one else. Where the legislature intends a power to be exercised by the PP only or to be shared by the PP and SPs it would be expressly stated in the legislation (see s 525(2) and 526 of the Criminal Code, The State v Esorom Burege (No.1) [1992] PNGLR 481 and The State v Pawa Kombea [1997] PNGLR 494);

(ii)	that the power of referral was not delegated to the SP as there is no evidence of delegation and there is no power to delegate the power to make a referral. A power of delegation, where it exists, is usually in express terms (see s 19 of the Organic Law on National and Local-level Government Elections, s 16 & 17 of the Police Force Act, De Smith's Judicial Review, Sixth Edition, paragraph 5-138 and Wade & Forsyth, Administrative Law, Tenth Edition, page 259);

(iii)	that the Tribunal's reliance on s 224 of the Constitution is wrong in that the power of referral under s 177 of the Constitution is entrusted to the PP and s 224 cannot be used to alter the express provisions of the Constitution;
 
(iv)	that the contention by the respondents that Judicial Review is premature is wrong in that an issue that goes to the jurisdiction of the Tribunal should be determined at the outset (see SC Reference No. 3 of 2005 Public Prosecutor's Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011, paragraph 143 and PNG Harbours Ltd v Pex Siaoa Avosa (2006) N3065); and
 
(v)	that the acting PP cannot re-present a referral. He has no power to amend or present a further referral as the legislature did not intend that leaders be subject to multiple referrals charging the same misconduct arising out of the same circumstances (see The State v Pawa Kombea [1997] PNGLR 494). 

10. The plaintiff's submissions are based on the assumption that the power of referral under s 177 of the Constitution and s 27(2) of the Organic Law was exercised on 4th July 2011 by the SP. Secondly, the plaintiff views or treats a Reference as akin to or somewhat similar to an indictment under the Criminal Code. 

The referral process

11. The question of the process of referral was considered by the Supreme Court in SC Reference No. 3 of 2005 Public Prosecutor's Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011. The Court said at paragraph 3: 

"[T]he process begins with OC. Upon receipt of a complaint or on its' own initiative, OC investigates the matter and forms an opinion as to whether the leader is prima facie guilty of misconduct in office. If OC forms that opinion, it refers the leader to the PP 'for prosecution before a tribunal' established under s 27 (e) of the OLDRL. OC's opinion is accompanied by a Statement of Reasons. PP decides whether or declines to bring a 'proceeding.' If he decides to bring a proceeding, he requests the Chief Justice ('CJ') to appoint the tribunal. CJ appoints the tribunal which is constituted by a Judge and two senior Magistrates. PP presents his own version of the allegations accompanied by OC's referral and Statements of Reasons, before the tribunal and prosecutes the matter." 

12. The Court continued at paragraph 131 thus:

"In our view, PP's duty to 'prosecute' a leader does not mean 'prosecute' in the traditional sense as in the case of bringing a criminal prosecution under the adversarial process. On the contrary, it refers to the whole process employed by PP in bringing the proceedings" including:-

(a)	deciding whether or not to bring a "prosecution" proceeding: s 29 (1) and s 177 (1)(b) of the Constitution;

(b)	requesting the appropriate appointing authority to appoint a tribunal;

(c)	presenting the allegations of misconduct in office before the tribunal;

(d)	bringing evidence or material to substantiate or prove the allegation;

(e)	countering, by evidence or otherwise, any evidence or material produced by the leader to dispute the allegations;

(f)	making submissions on the evidence and law to enable the tribunal to reach a determination or decision: and

(g)	assisting the tribunal in any aspect of the inquiry where the tribunal may require his assistance." (Emphasis added)

13. Pursuant to s 177(1)(b) of the Constitution, the PP must consider the referral document from OC and decide whether "to bring or decline to bring a proceeding" under the Leadership Code before an appropriate tribunal. The decision whether or not to mount a prosecution proceeding against a leader is an important one and must be made by the PP personally and no one else. This triggers the whole process employed by the PP to bring proceeding against a leader. Where the PP "failed to refer it" or "decline to bring proceeding", OC has power to proceed against the leader pursuant to s 27(3) of the Organic Law. There will be no prosecution of a leader by the PP unless the decision "to bring a proceeding" is made. The power to make a decision includes the power to alter the decision: Sch. 1. 10 (3) of the Constitution. I hold the view that where the PP decides to alter the decision, he must do so within a reasonable time and for very good reasons. In this case, the decision was made on 30th August 2006 by the PP at the time. That decision has never been revoked or altered by the PP or an acting PP up to now. What transpired on 4th July 2011 is, to my mind, a mere consequence of the decision on 30th August 2006. 

14. Section 27(2) of the Organic Law empowers the PP to "refer the matter ...to the appropriate tribunal referred to in Subsection (7)." The PP is required to prosecute the leader before the appropriate tribunal established under s 27(7) of Organic Law. As to how the PP should commence prosecution proceeding against a leader, the Supreme Court, in SC Reference No. 3 of 2005 Public Prosecutor's Power to Request the Chief Justice to Appoint a Leadership Tribunal (supra), said at paragraph 78:

"The Leadership Code is silent on this procedural point. It should be resolved by PP by resorting to s 224 of the Constitution." 

15. To suggest that the referral process begins when the Reference or the statement of allegations is drawn up, signed and handed up to the Tribunal is a misconception and erroneous in my view. Drawing up, signing and handing up the Reference to the Tribunal is just one of the steps in the referral process before the actual prosecution of the misconduct offences.

Is the Reference defective? 

16. Counsel for the plaintiff submitted that the PP's signature on the referral is necessary to prove that he has considered the matter and decided to bring a proceeding. I do not accept that submission. First, it is a legal requirement that the PP must decide whether or not to "bring a proceeding" against a leader. That decision was made in August 2006 by the PP personally. The decision has not been revoked or altered up to now. The power of referral was not delegated to or exercised by anyone else. The PP exercised the power of referral personally and the referral process commenced in 2006. Secondly, there is no requirement in law that the Reference is to be signed by the PP. The PP must settle the Reference and must be in his name. It is permissible for the Reference to be signed by the prosecutor appointed by the PP to prosecute the leader before the Tribunal. Section 6 of the Public Prosecutor (Office and Functions) Act states that judicial notice is taken of the PP's signature. This does not necessarily mean that the Reference has to be signed by the PP to be valid. Thirdly, the signature on the Reference does not affect the merits of the allegations or prejudice the plaintiff in any way whatsoever. Finally, the letter of 5th July 2011 by the acting PP to the plaintiff is, to my mind, a ratification of the actions of the SP on 4th July 2011.

17. Counsel for the plaintiff relied on Smedley v The State [1980] PNGLR 379, The State v Esorom Burege (supra) and The State v Pawa Kombea (supra) to suggest that as the Reference is defective in that it has not been signed by the acting PP it cannot be presented again. He submitted that the acting PP has no power to amend or present a further referral. The same argument was made in SCR No. 1 of 2009 Application by Herman Joseph Leahy (2010) SC1018.

18. In that case the National Court granted leave to the PP to amend an indictment against Mr. Leahy that had been presented under s 526 of the Criminal Code. Counsel for Mr. Leahy argued that once presented, there is no power to amend a section 526 indictment. The Supreme Court said at paragraphs 15 and 16 thus:

"15. However, neither Smedley nor Kombea stand for the proposition that, once presented, a Section 526 indictment cannot be amended. And we are not convinced that there is any good reason that such amendments should as a matter of law be prohibited.

16.	It might be that in the circumstances of a particular case an application to amend a Section 526 indictment would be an abuse of process. That is the argument made under the applicant's third ground of review. For present purposes, we are considering the applicant's principal contention – that there is no power to amend a Section 526 indictment – and we reject that contention. We conclude that the Public Prosecutor, having presented a Section 526 indictment, can properly apply for the leave of the National Court to amend it. The question of whether the indictment should be amended is a matter of discretion for the Judge before whom the application for amendment is made." (Emphasis added)

19. Secondly, in Esorom Burege and Pawa Kombea, the Court entertained the motions to quash the indictments pursuant to sections 534 and 558 of the Criminal Code. The power to quash indictments exists under sections 534 and 558 of the Criminal Code. No such power exists with respect to References or referrals under the Leadership Code. I have no power to quash a Reference or referral. I do not accept the argument that the Reference is defective on the basis that it was signed by a SP. I am of the view that the Reference may be amended or withdrawn and presented again. 

Conclusion

20. For all the reasons in the judgment, I make the following orders:

1.	The entire proceeding is dismissed with costs;

2.	The orders made on 10th August 2011 and extended subsequently are discharged;

3.	The first defendants shall reconvene as soon as practicable and conduct an inquiry into the allegations against the plaintiff.

_______________________________________
Posman Kua Aisi Lawyers: Lawyers for the Plaintiff 
Solicitor General: Lawyers for the Defendants