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In re Appeal by O'Donnell to an Appeal Board [1966] PGSC 18 (1 January 1966)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

Appeal of Mr. D.E.J. O'Donnell, Department of the Treasury, to an Appeal Board, pursuant to the Public Service (Papua and New Guinea) Ordinance 1963, Part 7.

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DECISION OF THE BOARD

This is an appeal brought by Mr. D.E.J. O'Donnell against a decision of the Treasurer made on the 5^th August, 1965, sustaining certain charges made against Mr. O'Donnell under the Public Service (Papua and New Guinea) Ordinance, and recommending to the Public Service Commissioner that Mr. O'Donnell be dismissed from the Public Service.

The Appeal Board commenced its proceedings on the 3^rd September, 1965, and continued on 6^th September, 1965. Mr. G. Dabb appeared for the Treasurer. At this stage the appellant was unrepresented, but on 14^th September, 1965, when the hearing was resumed the appellant was represented by Mr. O'Brien an officer of the Public Service.

The charges were made against the appellant on the 30^th of December, 1964, following an investigation made by Mr. B.H. Daff, Treasury Inspector, of the conduct by the appellant of his duties as a Treasury Representatives at Daru. The appellant was at the same time suspended from duty. The charge was as follows:-

"I HEREBY charge Desmond Edward James O'DONNELL, Clerk of the Department of the Treasury, Daru, Western District, within the meaning of Section 65 of the Public Service (Papua and New Guinea) Ordinance, 1963, with:-

(a) willfully disobeying or disregarding a lawful order made or given by any person having authority to make or give it.

(b) negligence or carelessness in the discharge of his duties.

(c) inefficiency or incompetence from causes within his control.

in that during the period from 9th January, 1964 to 9th December, 1964 he failed to reply to correspondence and questions referred to him free his headquarters, failed to submit reports and financial returns as instructed so to do, failed to keep proper books and amounts in accordance with Treasury instructions, willfully disobeyed an order to post certain returns by a certain date, advised his headquarters that returns had been posted when in fact they had not, and absented himself from his official position as Officer-in-Charge of the Treasury Department at Daru leaving the office in charge of a person not qualified to be in charge."

The appellant's reply was submitted to the Treasurer within the required period of seven days, in the following terms:-

"The Treasurer and Director of Finance,

Department of the Treasury,

KONEDOBU,

Port Moresby.

Charge made section 65 of the Public Service (Papua and New Guinea) Ordinance 1963.

I refer to the charge laid against me under the above Section of the Public Service Papua and New Guinea Ordinance 1963. My reply is sub tended.

(a) With regard to disobeying lawful orders this has occurred at times but was not meant to be in a manner which was disrespectful to superior officers but because of local work pressures which seemed at the time to be more urgent than immediate reply to Headquarters correspondence, questions and instructions.

(b) With regard to Section (b) and (c) of this charge. Since my posting to Daru I have been impacted by Treasury officials on three occasions and no mention of or charge of negligence, carelessness, inefficiency or incompetence has been levelled against me, although suggestions as to improvement of my work were given by all.

The reason I absented myself from my official position as O.I.C., Treasury Department at Daru and left the OFFICE IN charge of a person not qualified to be in charge occurred when I was appointed an Interviewing Member of the Committee appointed to Interview applicants for entry to the Public Service. On this occasion I rang Treasury Headquarters requesting that I be relieved of this task as it meant my absence from the office for a period of ever two weeks. However, no reply was received and I assumed that my appointment was to stand.

In conclusion I would offer my apologies for the inconvenience caused this Department by my actions."

Prior to the charge and at various stages during December, 1964, Mr. Daff made interim reports to the Treasurer and he apparently submitted a final report on the 5th of January, 1965. Subsequently, at the request of the Treasurer, Mr. R.N.C. Dixon, Chief Finance Officer, made a report dated the 3rd of February, 1965. It was on the basis of these reports that when he came to consider them on the 5^th August, 1965, the Treasurer found the charges proved. The delay was caused because the matter was referred to the Crown Solicitor and the Chief Commissioner of Police, and it was not until the end of July 1965, that final advice was received. This long delay was unfortunate as the appellant's suspension involved him in the loss of his Higher Duties Allowance and also deprived him, over so many months, of any occupation.

When the matter first came before the Board, it was immediately apparent to the Board that until after he had given notice of appeal the appellant had not been shown the reports prepared by Mr. Daff and Mr. Dixon. Having regard to the very general nature of the charges and the particulars thereunder, the Board considers that it was not possible for the appellant to know what was alleged against him without reference to these reports.

The Treasurer's obligation, as defined by the Ordinance, Section 65 (5), was,

"after consideration of the reports relating to the offence and charge, the reply and explanation (if any) of the officer charged and any further report he considers necessary......,"

to consider whether the charge has been sustained.

As the Treasurer was plainly exercising judicial duties, he was at common law bound to observe the principles of natural Justice. Ridge v. Baldwin [1963] UKHL 2; (1964) A.C. 40. The Board does not consider that the words of Section 65 (5) absolve the Treasurer from his obligation. The principles of natural justice require a person exercising judicial functions, not only to inform the appellant of the precise charges made against him, but also to give him a full opportunity of being heard. The Treasurer's obligation also was to give the appellant "a fair opportunity to make any relevant statement which he may desire to bring forward, and a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice." De Verteuil v. Knaggs (1918) App. Cas. 757, per Lord Parmoor, p. 560. If he proposed to act upon the reports of Mr. Daff and Mr. Dixon, the Treasurer should have shown those reports to the appellant and thus given the appellant an opportunity of answering such reports.

Not only do these reports contain the only real particulars of the enemas made against the appellant, but they also contain some highly prejudicial material in as much as the possibility is canvassed that the appellant had, in fast, misappropriated a large sum of money, viz: £1745.7.6d.

As these reports were not shown to the appellant an argument could have been made out before the Board that the Treasurer's decision was null and void, Ridge v. Baldwin (supra), and that accordingly there was no valid decision of the Treasurer which the Appeal Board could "confirm, annul or vary," pursuant to the Ordinance, Section 68 (2).

However, Mr. O'Brien, on behalf of the appellant specifically refrained from taking this argument, and he submitted that the Board should proceed with the Appeal on the grounds taken by the appellant, viz: his innocence of the charge or the excessive severity of the punishment. Mr. Dabb made a similar submission. The Board accepted this submission and thus proceeded to hear the appeal on the merits.

Before leaving this matter, however, we would stress the fundamental necessity in all proceedings conducted by a Departmental Head under Section 65, that the officer charged should be given precise particulars of a charge, and accorded a full opportunity of considering any reports, and also of answering them. Failure to observe these principles of natural justice will render the decision of the Departmental Head null and void.

In the adjournment between the 6^th and the 14^th September, 1965, the appellant had an opportunity for the first time of fully answering the charges brought against him, and on the latter date Mr. O'Brien submitted a written answer to the charges in a form which the Board found most useful. On that day, having received the appellant's written reply, the Board then heard evidence from Mr. Daff and Mr. Dixon, the appellant's evidence in reply, and short submissions made by Mr. Dabb on behalf of the Treasurer, and Mr. O'Brien on behalf of the appellant. The Board then reserved its decision.

The charges brought against the appellant were in respect of his conduct as a Treasury Representative at Daru, in the Territory of Papua, during the period from the 9^th January, 1964 to the 9^th December, 1964. Mr. Daff's investigation commenced on the latter date. During the investigation Mr. Daff found that the books disclosed a deficiency now of £1745.7.6d. But he found no evidence to me to indicate accounting errors or serious omissions rather than fraud or any other similar intent." (Folic 27).

It is important to note that Mr. Dixon, the Chief Finance Officer, went to Daru at the end of September 1964, and carried out an inspection of the appellant's work. In his report he said, "I am satisfied that O'Donnell has a good grasp of his duties and for an officer of his experience is generally efficient. His main faults are a chaotic filing system, an untidy office, and relying on his memory to provide returns, summaries and reports to headquarters. His failure to answer correspondence is directly attributable to these failings." (Folic 41).

The Board took the view that having regard to MR. Dixon's inspection and the above findings, in considering the evidence laid against the appellant, it would not go further back than the 30^th September 1964.

Before proceeding to a detailed consideration of the charges, we propose to refer to the large deficiency disclosed by the books. From Mr. Dixon's report we have the uneasy feeling that, although there was no charge of misappropriation, the possibility that the appellant was responsible for the deficiency, did in fact influence the Treasurer in making up his mind as to whether the charges were sustained and as to the penalty to be imposed. The following passage appears in Mr. Dixon's report:

"Apart from the minor matters included in the charge, the fact remains that a deficiency of £1745.7.6. has been disclosed. Although I personally do not think Mr. O'Donnell has mis-appropriated any of this money, and that the deficiency was caused by lack of proper accounting brought about by the negligence, carelessness and untidiness, the possibility cannot be overlooked." (Folic 37).

Mr. Dixon having reported that the charges should be sustained, recommended that the appellant be reduced to a salary classification of base grade clerk. In making this recommendation, it is plain that he took account of the possibility that there had been a mis-appropriation.

The Board desires to say that there being no charge against Mr. O'Donnell of misappropriating funds, it was improper to take into account the possibility that he was responsible for the deficiency.

Mr. Dixon admitted in evidence before us that if the books are found not to balance and a cash deficiency appears, such deficiency is equally consistent with –

(a) misappropriation of money;

(b) negligence or inefficiency in accounting methods; and

(c) an honest mistake in accounting not involving negligence, carelessness or inefficiency.

In the light of Mr. Dixon's evidence, we have decided that, as onus is upon the Department to establish beyond reasonable doubt that the charge is sustained, the mere fact that the books could not be balanced and that they show a deficiency is thus itself not proof of negligence, carelessness or inefficiency.

We propose now to turn to the specific charges. Although the Department supplied only meagre particulars, the gist of the charges is that the appellant committed any one of the following quasi-criminal offences under Section 65 of the ordinance, viz:

(a) Wilful disobedience or disregard of a lawful order;

(b) negligence in the discharge of his duties;

(c) carelessness in the discharge of his duties;

(d) inefficiency;

(e) incompetence from causes within his control.

The Department seems to have sought to establish these charges by relying upon the six specific charges referred to in Mr. Dixon's report, and set out at Folic 38. We propose to consider each of these in turn.

1. During the period from 9^th January, 1964 to 9^th December, 1964, the appellant failed to reply to correspondence or question referred to him from his headquarters.

At the hearing Mr. Dabb admitted that this offence referred to events that occurred prior to September, 1964, and for the reason already given, the Board declined to have regard to this period, so that finds this charge not sustained. If the appellant's failings in this regard had been of a quasi-criminal nature within the meaning of the Ordinance, Section 65, then presumably Mr. Dixon would, at that time, have recommended that he be charged.

2. During the period 9^th January, 1964 to 9^th December, 1964, the appellant failed to submit reports and financial returns as instructed to do so.
11^11::

The Board does not propose to canvass in detail the evidence given before it in this matter. We were impressed by Mr. Dixon's evidence as to the extreme importance in Treasury procedure of prompt despatch of monthly returns, summaries and reports. We find it sufficient to state that the appellant admittedly failed to submit the September and October monthly reports, and we find also, the October monthly returns. Even having regard to the explanation given by the appellant before us as to the October returns, we find in respect of his failure to submit each of these documents, the appellant was careless, and that this amounted to carelessness on his part in the discharge of his duties, within the meaning of the Ordinance, Section 65. For the reasons given, we do not consider any matters earlier than the 30th September, 1964. Having regard to the appellant's absence from his office on interviews at the end of November, 1964, we are not satisfied beyond reasonable doubt that his failure to submit the November returns, constituted carelessness on his part.

3. The appellant during the said period failed to keep proper books and accounts in accordance with Treasury Instructions.

The Department in this matter relied upon the large cash deficiency. For the reasons already given we are unable to accept this as proof beyond reasonable doubt of this charge.

Mr. O'Donnell admitted that the receipts side of the cash book had not been written up, and that postings in respect of debit notes were not up-to-date as at 9/12/64. As to the former he stated that the relevant data affecting that part of the cash book had been prepared, in as much as all the Daily Collectors' statements had been prepared, so that it would have been a simple matter to write up the cash book. He had been unable to do this because of the extra duties associated with staff interviews for the Public Service Commissioner.

Mr. Dixon himself regarded the gravamen of this charge as the appellant's failure to bank his cash or cheques or regularly, which led to overdrawing on a number of occasions. However, we do not consider that such an omission constitutes a failure "to keep proper books and accounts in accordance with Treasury instructions". It thus falls outside the charge.

There is ample evidence that the Treasury office at Daru was understaffed and the accommodation so cramped as to affect efficiency. Further, over a period of 8 or 9 days after 24^th November, 1964, the appellant was engaged in staff interviews.

In light of these special circumstances, the Board is not satisfied beyond reasonable doubt that any failure by the appellant in this regard constitutes negligence, carelessness, inefficiency or incompetence.

4. The appellant during the said period willfully disobeyed an order to post certain returns by a certain date.

We have already dealt with the appellant's failure to send the October returns and summary, and also the September and October monthly reports. We do not consider that disobedience of an order to post the same documents should be the subject of another conviction. Moreover, our conclusion in respect of the November returns, which we have set out, apply also to these monthly reports.

On 30^th November, 1964, the appellant was instructed to have the November returns in the mail by 4^th December, 1964. On 1^st December, 1964, he was instructed to have in the same mail, the September and October monthly reports, the answers to July and August queries, and copies of the October summaries.

In the Board's opinion "willful disobedience" connotes "deliberate consideration of the order and a conscious intention to disobey it". Worthington v. Ad Lib Club Ltd. (1964) 3 WLR 1094, per Stirling J. at p. 1103.

At the time when this instruction was given, the appellant was, on the instructions of the Department, busily engaged in interviews, and the Board is thus not satisfied beyond reasonable doubt that his failure to post the returns resulted from a conscious intention to disobey the instructions. The Board is not satisfied that his failure was due to any more than physical inability to comply with the instruction.

5. The appellant advised his headquarters that returns had been posted when in fact they had not.

We have already sustained a charge of carelessness in respect of the October returns. In so far as the November returns are concerned, we consider that whilst the appellant admits that he advised the Department that the returns had been forwarded when they had not, the fact that on the following two days he advised the Department they had not in fact been posted, shows a familiar situation of human weakness which, in our opinion, does not amount to negligence, carelessness, inefficiency or incompetence within the meaning of the Ordinance, Section 65.

6. The appellant absented himself from his official position as officer-in-charge of the Treasury Department at Daru leaving the office in charge of a person not qualified to be in charge.

The appellant states that he was, on a number of days between the 25th of November and 9th of December, 1964, absent from the office conducting interviews on behalf of the Public Service Commissioner. He had been nominated by the Treasurer as being available to carry out interviews on behalf of the Public Service Commissioner. Having regard to the conflicting nature of his duties, one being to keep open the Treasury office and the other to conduct interviews, both on the instructions of his Department, unless the Treasurer had given some special instruction, the Board considers it would be difficult for the Department to make out this charge. At this time the local officer, who was also employed at Daru, and who was left in charge during the appellant's absences, was regarded both by the appellant and his superior officers as being "an accurate and reliable person" (Folic 32). In the special circumstances of this case the Department has failed to prove beyond reasonable doubt that the appellant was negligent or inefficient in the respect charged.

We thus find that the appellant was guilty of one of the charges in that he was careless in the discharge of his duties in that he failed to submit certain financial returns and reports.

The appellant has, by reason of his suspension, already lost over £120 Higher Duties Allowance, and the Board considers this is a sufficient penalty. Accordingly the Board varies the decision of the Treasurer appealed against, by finding the above charge only sustained, and on the basis that the appellant's suspension will be immediately lifted, imposes no further penalty.