N5321

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 100 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE WESTERN HIGHLANDS PROVINCIAL ELECTORATE

BETWEEN

TOM OLGA
Petitioner
 
AND

GORDON WIMB, Returning Officer for Hagen Open Electorate
First Respondent

AND

JOSEPH NENG, Returning Officer for Western Highlands Provincial Electorate
Second Respondent

AND

ELECTORAL COMMISSION OF PNG
Third Respondent

AND

PAIAS WINGTI
Fourth Respondent

Mount Hagen: Makail, J
2013: 11th, 18th April & 02nd August

PRACTICE & PROCEDURE – Application to disqualify Judge – Apprehension of bias – Conduct of Judge's Associate – Public statement made by Judge's Associate – Allegation that Judge had pre-determined petition in favour of petitioner – Association by Judge – Direct relationship, experience or contact between Judge and Associate – Proof of – Lack of evidence establishing allegation – Application dismissed.

Cases cited:
Papua New Guinea Cases

Pacific Equities & Investments Limited -v- Teup Goledu, Chairman Securities Commission of PNG & 2 Ors (2008) N3400
Rimbink Pato -v- Miki Kaeok & Electoral Commission (2003) N2455
Peter Yama -v- Bank South Pacific Limited (2008) SC921
PNG Pipes Pty Limited and Sankaran Venugopal -v- Mujo Sefa & Ors (1998) SC592
Application by Herman Joseph Leahy (2006) SC855 
Coecon Limited -v-National Fisheries Authority (2002) N2182
Boateng -v- The State [1990] PNGLR 342
Edward Ranu Diro -v- Arnold Amet & Ors [1995] PNGLR 411 

Overseas

R -v- Phillips [2009] 2 Qd R 263
Bahonko -v- Moorfields Community [2012] VSCA 89

Other References

Richard Lilley SC and Justin Carter "Communications with the Court" (2013) 87 Australian Law Journal, 121

Counsel:

Mr C Mende with Mr D Tambili, for Petitioner 
Ms S Tatabe, for First, Second & Third Respondents
Mr A Manase with Mr D Issac, for Fourth Respondent
Ms C Maidang for Associate

RULING ON APPLICATION TO DISQUALIFY JUDGE

02nd August, 2013

1.	MAKAIL, J: The fourth respondent Mr Paias Wingti moved on a notice of motion filed on 02nd April 2013 to have me disqualified from hearing the election petition for the Western Highlands Provincial Electorate on the ground of apprehension of bias. He alleged that my Associate Mr Charlie William told a third party that I had pre-determined the petition in favour of the petitioner Mr Tom Olga. 

Background Facts

2.	The application was made on the first day of a two week trial. It is the first of its kind in the country because never before has a Judge been asked by a party to a court proceedings to disqualify himself from hearing a case because of statements made by his Associate.

Preliminary Procedural Issues

3.	Parties accepted that I hear the application to disqualify myself consistent with long line of case authorities where in most cases, a Judge is asked to disqualify him or herself because he or she may have personal knowledge of the subject matter before the Court, may have acted as a lawyer on behalf of a party prior to being appointed a Judge, or may have heard and ruled against the party in an interlocutory application before the substantive proceedings or appeal. For example, in Pacific Equities & Investments Limited -v- Teup Goledu, Chairman Securities Commission of PNG & 2 Ors (2008) N3400, an application was made to the Judge to disqualify himself from hearing the case because it was alleged among others that he had previously acted as lawyer and gave advice to a third party concerning the publication of a proposed statement relating to the dispute the subject of the proceedings before him. Compare this position with Rimbink Pato -v- Miki Kaeok & Electoral Commission (2003) N2455 where the application to disqualify the Judge was referred to another Judge to determine it. 

4.	The other procedural aspect is whether the Associate should be given an opportunity to respond to the allegation or whether the Judge should hear the application without affording him the opportunity to respond. If the Associate is given the opportunity, whether the Judge should hear his response in private, that is in Chambers and inform parties in open Court of his decision or if the Associate is given the opportunity to respond, whether the Judge should hear his response in open Court and inform the parties of his decision.

5.	Given that the allegation is serious, as is always the case in any application for disqualification, the Associate was given the opportunity to respond to it in open Court. He denied the allegation. Mr Wingti called evidence from witnesses and the Associate did likewise. At the completion of all evidence, the Court adjourned and allowed parties to file written submissions. When hearing resumed, I heard counsel speak to their respective submissions and adjourned for a ruling.

6.	This course appears consistent with the course taken by the Supreme Court of Queensland in R -v- Phillips [2009] 2 Qd R 263. That was an appeal from the decision of the District Court against conviction and sentence of John Bradley Phillips on four counts of rape. It was a jury trial and appeal records showed that the Crown prosecutor concluded her submission and the trial Judge immediately adjourned the Court. 

7.	Mr Phillips, his sister and his de facto wife all swore affidavits to the effect that when the Crown prosecutor finished addressing the jury, the trial Judge's Associate gave the prosecutor a "thumbs up" signal and mouthed words of encouragement, "That was awesome". At that time that occurred, the jurors had filed past the bar table towards the courtroom door behind the prosecutor and the dock. No affidavit was obtained from the Associate. 

8.	In the present case, the main allegation is that the Associate uttered the following words:

"dispela case em definitely Tom Olga bai win because long Port Moresby, taim tupela i kot, Tom Olga i winim tri or four pela time pinis na nau bai kam antap long hia long 02nd April, 2013 wei Judge blo mi bai makim final decision blong Tom Olga long win." When translated to English, it is something to this effect, "This case, Tom Olga will definitely win because when the matter was heard in Port Moresby, Tom Olga already won three or four times and now the matter will be heard here on 02nd April 2013, where at the time of hearing, my Judge will made a final decision in favour of Tom Olga."

9.	At this stage, it must be clearly understood by all that it is only an allegation but it is a serious one because it infers that the Associate has been informed by the Judge that the Judge will decide the petition in favour of Mr Olga and a fair trial for Mr Wingti is not possible. Equally, the party relying on such a statement is questioning not only the impartiality but also the integrity and independence of the Judge. 

10.	There must be factual foundation for the application to disqualify a Judge. This means, it is necessary first to identify the facts, matters and circumstances by reasons of which it is said that a Judge might decide a case other than on its merits and secondly, to articulate the logical connection between those facts, matters and circumstances and the apprehended deviation from the course of deciding the case on the merits: Peter Yama -v- Bank South Pacific Limited (2008) SC921, PNG Pipes Pty Limited and Sankaran Venugopal -v- Mujo Sefa & Ors (1998) SC592, Application by Herman Joseph Leahy (2006) SC855 and Coecon Limited -v- National Fisheries Authority (2002) N2182.

11.	In PNG Pipes' case (supra), the Supreme Court said that "There must be circumstances from which a reasonable man would think likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly." In the Application by Herman Leahy (supra), the Supreme Court said that "the suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds." In Coecon's case (supra), it was held that an "application for a Judge to disqualify is a serious matter and must be supported by proper evidence." 

12.	The Courts have taken this position because Judges should not too readily accede to applications for disqualification, whereby parties may effectively influence the choice of a Judge in their cause. The underlying principle is Judges should resist from being driven from their Courts by the conduct or assertion of parties.

13.	The onus of proof is on the party who alleges and the civil burden of proof is on the balance of probabilities. The Associate denied the allegation and as Mr Wingti is the party making the allegation, he bears the burden of proving it on the balance of probabilities. In my view, Mr Wingti must not only prove that the Associate did make the statement but also prove that if the statement was ever made, a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question required to be decided. 

Parties' Evidence

14.	Mr Wingti called three witnesses. They were Mathew Philip, John Mek and Ray Paul. They relied on their affidavits which were tendered as follows:

14.1.	Affidavit of Mathew Philip sworn on 02nd April 2013 (Exhibit "R1"),
14.2.	Affidavit in response of Mathew Philip (Exhibit "R2"),
14.3.	Affidavit of John Mek (Exhibit "R3"), and
14.4.	Affidavit of Paul Ray (Exhibit "R4").

15.	Mathew Philip's evidence attempted to establish that the Associate stated that I had predetermined the petition in favour of Mr Olga. It was made on the afternoon of Saturday 09th March 2013 at Imbokerre Lodge at Warakum in Mt Hagen, where he heard the Associate told him, David Kansol and other family members of the Associate that I had predetermined the petition in favour of Mr Olga. At that time, the Associate was drunk and was conversing with them about the Judges' function as Judge Administrator of election petitions including this election petition. The Associate vehemently denied making that statement so did David Kansol, the Associate's wife Ann Charlie and his younger brother Onda Marcus. 

16.	John Mek's evidence has no relevance to the events that occurred at Imbokerre Lodge. His evidence attempted to establish that as an observer, the Associate's alleged statement has caused some apprehension in his mind that the trial Judge will not be impartial in his decision. In that respect, he said that a few days after the alleged statement was made, on 11th March 2013, he drove Mathew and David in his 15-seater bus to Kaiwe buai market to buy betel-nut and smoke and on to Kaminga Wur and on their return journey, he heard Mathew and David said that on the afternoon of 09th March 2013 between half past four and five o'clock, the Associate told them that he (the Associate ) "is in charge of all election petition cases" and that he said that "Tom Olga will definitely win this Election Petition matter." 

17.	Paul Ray's evidence attempted to establish a link or connection between the Associate's alleged statement and the Associate's conduct and a strong inference that the alleged statement had some factual truth in it because some three or four weeks earlier while shopping, the Associate met a Mr Paul Rus in Port Moresby and told Paul Rus that "Judges are also human beings." Paul Rus told him to tell Mr Wingti to see the Associate so that they could use the Associate to bribe the trial Judge.

18.	Mr Manase of counsel for Mr Wingti sought to discredit the credibility and reliability of the evidence of the Associate and his witnesses by attempting to establish on cross-examination, conflicting evidence in relation to: 

18.1.	the location of Mathew when he was picked up by David on the afternoon of 09th March 2013,

18.2.	whether the Associate drank beer with David at the car-park of Imbokerre Lodge, and

18.3.	the number of bottle beer David drank at the car-park of Imbokerre Lodge.	

19.	In addition, counsel sought to establish on cross-examination that David's evidence is unreliable and should not be accepted because he failed to recall precisely what he deposed to in his affidavit (exhibit "P2) in particular the number of election petitions registered in the National Court. 

20.	However, counsel conceded that the application is not based on what I said but on what my Associate said, that is, I had predetermined the petition in favour of Mr Olga. In support of the latter position, in submissions he submitted among others, given the conflicting evidence by the Associate and his witnesses, their evidence should not be accepted. On the other hand, the Court should accept the evidence of Mr Wingti's witnesses as credible and reliable and rely on it to find that the Associate said that I predetermined the petition in favour of Mr Olga.

21.	 Counsel further submitted that given the close proximity of relationship between a Judge and a Judge's Associate, a reasonable man would assume that what an Associate to a Judge utters in respect of a particular case would in fact be the mind of the Judge, even if the Judge had not uttered words to that effect. Counsel relied on Boateng -v- The State [1990] PNGLR 342 to support this submission. Based on this close relationship and if I find that the Associate said that I had predetermined the petition in favour of Mr Olga, it would be open to me to also find that a fair-minded observer would entertain a reasonable suspension that Mr Wingti will be deprived of a fair trial. 

22.	Counsel for the petitioner and Associate argued that the application is unfounded and misconceived because evidence supporting allegation is far-fetched. They emphasised that the relevant evidence which attempted to establish that the Associate said that I had predetermined the petition in favour of Mr Olga is from Mr Philip but he gave conflicting evidence in relation to the accuracy of the alleged statement and the conflicting evidence is fundamental to the application. It raised a serious doubt in relation to the credibility of Mr Philip's evidence and the genuineness of the whole application. 

23.	The submission brought a strong counter-argument from counsel for Mr Wingti who submitted that if the opposition's attack is on the accuracy of statement allegedly made by the Associate, Mr Philip has sufficiently explained that it was a typographical error in the date in his affidavit and is trivial. The Court should look at the whole circumstances of the case and find that there is overwhelming evidence establishing the allegation.

Consideration of evidence and law

24.	This case is about association by Judge with his Associate. Given that the Judge and Associate work together, in most cases on a daily basis throughout the year, I accept that there exists a direct relationship, experience or contact between them. The role and function of a Judge's Associate is important in the administration of justice. As Richard Lilley SC and Justin Carter stated in their article on "Communications with the Court" published in (2013) 87 Australian Law Journal, 121 at 128: 

".......the importance of the role and function of the judge's associate should not be overstated so far as the test of reasonable apprehension of bias is concerned. As the Full Court of the Federal Court observed in John Holland, the fact that communications are received by the judge's associate or other chamber staff is not tantamount to its receipt by the judge himself or herself. With some regularity, however, judges are asked to stand aside from determining a matter on the basis that his or her associate raised an alleged perception of bias, but with similar regularity these applications are refused. The capacity of judge's associates to influence the due and proper administration of justice should not, however, be understated."

25.	In this vein and returning to R -v- Phillips (supra) as an example of a case where the Court had expressed the importance of the role and function of Judge's Associates, when the Court resumed, as is usual in a jury trial, the trial Judge gave the standard directions making it clear to the jury how it should approach its task. The jury later returned a verdict of not guilty on count 1 and count 2 but convicted Mr Phillips on a lesser charge of unlawful carnal knowledge, acquitted him on count 2 and convicted him on count 4 of rape. 

26.	On appeal, the issue was whether a fair-minded observer would hold a reasonable suspicion that the trial would be rendered unfair if the jurors' impartiality were impaired by reason of the Associate's conduct. The Court by a majority Holmes, JA and White AJA, with McMurdo, J dissenting acknowledged that an Associate occupied a position of importance in Court because among other duties, empanels the jury, swears in bailiff and manages exhibits and the jury might identify her with the Judge and regard her as manifesting the Judge's authority; so that her endorsement of the prosecutor's submissions, with that authority, raised the possibility that Mr Phillips was deprived of a fair trial.

27.	Their Honours went on and held that because the trial Judge had given directions that were sufficiently clear to the jury as to how it should approach its task, were reminded to act only on the evidence before it and disregard the views of others, a fair-minded observer would not readily think that the jury members ignored the directions or, indeed, their oath (or affirmation) to "conscientiously try the charges against the defendant and decide them according to the evidence." They further held that given the directions and the outcome of the jury's deliberations, a fair-minded member of the public would not entertain a reasonable suspicious that Mr Phillips was deprived of a fair trial by reasons of the behaviour attributed to the Associate and dismissed this ground of appeal.

28.	In Bahonko -v- Moorfields Community [2012] VSCA 89, the Victorian Supreme Court of Appeal refused Mrs Bahonko's application for leave to appeal the decision of Judge Saccardo of the County Court where his Honour refused to disqualify himself, on the ground of alleged actual or apprehended bias from hearing her claim against her former employers and the Victorian Work Cover Authority for benefits under the Accidents Compensation Act. 

29.	The case has a long history but summarising the facts, the Associate to Judge Saccardo was previously Associate of Judge Misso of the County Court. In June 2008, Judge Misso was listed to hear Mrs Bahonko's case. He had already dealt with interlocutory aspects of the case when he, apparently on the request of the Chief Judge of the County Court presented a written submission to the Law Reform Committee of the Victorian Parliament on vexatious litigant and made a reference to a "case in point". As it turned out later, it was Mrs Bahonko's case he had referred to in his submission. Shortly before the trial of Mrs Bahonko's case, Judge Misso determined among others that the allegations against him were unfounded and the applications were without merit. The Supreme Court of Appeal set aside his Honour's decision on the ground of apprehended bias and ordered a re-trial of the proceedings by another Judge.

30.	Judge Saccardo was then allocated the matter and at the directions hearing on 27th January 2012, Mrs Bahonko attended together with counsel for the defendants and she saw the Associate present as Associate to Judge Saccardo. She also recognised a tipstaff on duty that day as a tipstaff who, she alleged, verbally threatened and abused her in 2008. She verbally applied to Judge Saccardo to disqualify himself and he refused. 

31.	The Supreme Court held that Mrs Bahonko's objections based on the Associate's position were misconceived because there was no evidence that she had anything to do with the preparation of Judge Misso's submission to the Law Reform Committee, that she had any influence over Judge Misso in relation to his findings and decision in 2008. Mrs Bahonko also said that during a hearing on 27th January 2012, Judge Saccardo referred to the Associate as his "trusted associate", and she said that this was sufficient to disqualify Judge Saccardo. The Court held that assuming that Judge Saccardo did refer to the Associate as his trusted Associate, that would be no basis for any concern that the Associate will have influence, much less any undue influence, over the decision.

32.	 The issue is whether the Associate uttered words to the effect that I had predetermined the petition in favour of Mr Olga. In my view, this is the threshold issue. There must be evidence to establish that the Associate said that I decided the petition in favour of Mr Olga. 

33.	A Judge's independence must be respected by all. Aggrieved parties who come to Court to seek justice must have confidence in the Judges. They must be assured that the Judges will decide their cases impartially and not be influenced in any way by a party to the proceedings. Therefore, it is upon the party who alleges that a Judge will not be impartial in his decision to prove it. If he alleges that the Judge has predetermined a case in favour of the other party, he must come with evidence to establish it. 

34.	The only evidence relative to establishing the making of the statement by the Associate came from Mathew Philip. He deposed in his affidavit (exhibit "R1") and affidavit in response (exhibit "R2") which were tendered by consent that he heard the Associate said that I had predetermined the petition in favour of Mr Olga. 

35. In the witness box, Mr Philip gave me the impression that he is a truthful witness. He responded firmly to questions during cross-examination and maintained that the Associate said that I had predetermined the petition in favour of Mr Olga. But that is one aspect of his evidence. The other aspect is the exact words he allegedly heard from the Associate. It is set out at paragraph 15 of his affidavit (exhibit "R1"):

"Dispela case em definitely Tom Olga bai win because long Port Moresby, taim tupelo i kot, Tom Olga i winim tri or four pela time pinis na nau em bai kam antap long his long 02nd April, 2013 wei Judge blon mi bai makim final decision blong Tom Olga long win."

36.	This is his sworn evidence. He stated further that at paragraph 23 of the affidavit that the content of the affidavit is true and correct in every particular. He also confirmed in open Court the correctness of the contents of his affidavit when asked by counsel. All these statements establish that Mr Philip knew that the statement uttered by the Associate was correct and his evidence is "nothing but the truth." He did not point out to the court that there was an error in his affidavit. So based on this evidence, the Court must accept that this was the statement the Associate was alleged to have made.

37.	It was in his affidavit in response (exhibit "R2") that he pointed out that the date of 02nd April 2013 was wrongly written in his affidavit. He said that this was due to an "oversight". He and counsel picked up this "oversight" when the Associate refuted the allegation through the affidavit (exhibit "P1") disputing the veracity of the statement. The Associate said that he did not make such a statement or uttered words to that effect and drew the Court's attention to the date for trial which was fixed at the pre-trial conference on 11th March 2013 and at that time he would not have known the trial date when he made the alleged statement. 

38.	It cannot be a "typographical error" as submitted by Mr Manase. This is a fundamental inadvertence. To me, it is an admission of a serious discrepancy in Mr Philip's evidence which raises doubts as to the credibility and reliability of his evidence. This is the critical part of the case and it cannot be emphasised enough that Mr Wingti as the applicant bears the onus of proving the allegation. His case rises or falls on the accuracy of this statement. Given the conflicting evidence on the alleged statement by the Associate, I am not satisfied that Mr Wingti has established that my Associate said that I had predetermined the petition in favour of Mr Olga on the balance of probabilities.

39.	Given this finding, there is no factual basis to support the application for disqualification and I dismiss the application. Notwithstanding this finding, and assuming that I find that Associate had said that I had predetermined the petition in favour of Mr Olga, my conclusion will still be the same.

40.	The Australian cases referred to earlier, R -v- Phillips and Bahonko are not binding on this Court but are of persuasive value. But as I said at the beginning, this case appears to be the first "reported" case on Judge disqualification on account of the Associate's conduct and in the absence of local case precedents on the subject, I would follow them. 

41.	As noted, these cases recognised the importance of the role and function of Associates. At the same time, they recognise that the conduct of Associates do not necessarily mean that a Judge is bias. In that same vein, each case must be decided on its own merit. 

42.	In Papua New Guinea, the nearest case to the present is Edward Ranu Diro -v- Arnold Amet & Ors [1995] PNGLR 411. The application for disqualification was grounded on the association by Judge principle. That was a case where a former Judge's wife revealed to the Court that the former Judge made adverse comments about a party appearing before another Judge in a court case. The former Judge and the trial Judge were personal friends and very close to each other. Mr Diro applied to disqualify the trial Judge on the ground of apprehension of bias. The trial Judge refused the application. Mr Diro appealed and the Supreme Court upheld the appeal. The Supreme Court held among others that given that the former Judge and the trial Judge were close personal friends, the relationship and the adverse comments gave an appearance of bias and the trial Judge should have disqualified himself from hearing the case. But it is distinguished from this case because it concerns a relationship between two Judges and therefore of no relevance. 

43.	The other is Boateng's case (supra). That was a case where the spouse of the trial Judge in a criminal proceeding was a friend of the rape victim. She was not only seen sitting in the Court room during the trial but also talking with the victim and a policewoman in charge of the case outside the Court room during adjournments. The trial Judge convicted the accused of rape and said that at no time did he know that his wife was a friend of the victim. The accused appealed to the Supreme Court on the ground of apprehension of bias against the trial Judge because of the Judge's wife's association with the victim. The Supreme Court upheld the appeal and quashed the conviction. 

44.	With respect, in my view while Boateng's case (supra) makes it clear that a Judge should disqualify if there is an association by the Judge through personal association with parties or witnesses, the present case concerns a Judge and Judge's Associate and not a Judge and his or her spouse. This is where the association or relationship differs, and I do not think the relationship can be equated at the same level as a Judge and his or her spouse relationship and I need not say anything more on this. Thus, it would be absurd that a Judge should disqualify simply because of the conduct of his or her Associate. 

45.	The facts of at least one of the two Australian cases I have cited earlier, R -v- Phillips showed gross misconduct on the part of the Associate. Yet the Supreme Court found that it was not sufficient to influence the jury in its decision. I accept this position. I also accept that Associates play an important role and function in the administration of justice but no matter what the Associate say or do and may say or do, a Judge should not disqualify himself or herself because of what his or her Associate say or do. For these reasons, I am not satisfied that a fair-minded observer would hold a reasonable suspicion that the trial would be rendered unfair if I hear the petition by reason of the Associate's conduct.

Order

46.	The application is dismissed with cost to Mr Olga, the Electoral Commission and the Associate to be taxed if it is not agreed. I will now hear parties on the new dates for trial.

Ruling accordingly.
_______________________________________________________________

Wantok Legal Services:	Lawyers for Petitioner
Niugini Legal Practice:	Lawyers for First, Second & Third Respondents
Manase & Co Lawyers:	Lawyers for Fourth Respondent
NJSS In-house Counsel:	Lawyer for Associate