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Leleimalefaga v Samoa Police Service [2021] WSPolSBA 1 (13 September 2021)

THE POLICE BOARD OF APPEAL
Leleimalefaga v Samoa Police Service [2021] WSPolSBA 1 (13 September 2021)

THE POLICE BOARD OF APPEAL

HELD AT MULINUU

BETWEEN:

TUPAI SAPANI LELEIMALEFAGA

Appellant

AND:

SAMOA POLICE SERVICE

Respondent

Panelists:
Chairperson: Judge Alalatoa Rosella Viane Papalii (Chairperson)
Members: Acting Assistant Commissioner Misatauveve Tofaeono

Inspector Sala Solomona Natia

Appearances:
Appellant Mr L H Schuster & Ms N Schuster
Respondent Ms L I Atoa, Ms L Janke & Mr J Tuala

Date of Hearing 21 April 2021
Ruling date: 13 September 2021

DECISION OF THE POLICE BOARD OF APPEAL

Table of Contents
Introduction 6
Background Facts 8
Procedural History 9
Charges Before the Police Tribunal 11
Tribunal Findings 11
Penalty Ruling 12
The Appeal 13
Legislative framework 15
Approach on Appeal 17
Standard of proof 18
Primary Issues on Appeal 21
Summary of Evidence Before the Tribunal 22

First Issue: 25
Did the Appellant Act in Breach of the Duty as charged and if so did it
amount to Misconduct?
Unpacking the Charge 25
Submissions 27
Analysis

Unsatisfactory and Insufficient Evidence 29

No breach of Duty 36

Misconduct 36

Second Issue: 38
Were there adequate reasons to substantiate the ruling of the Tribunal?
Law on Duty to Give Reasons for a Decision 38
Unpacking the Reasons for the Tribunal Ruling 41
Inadequate and Irrelevant Reasons 42
Reasons for findings of Tribunal Grossly wrong 42

Third Issue: Appeal against Penalty 43
Was there Procedural fairness when the Commissioner imposed the 43
penalty and was there a breach of the rules of natural justice and
Article 9(1) of the Constitution?

Grounds of Appeal 43
Statutory function of the Tribunal and Commissioner 43
Tribunal’s Recommendation on Penalty 44
Procedure Before the Commissioner 44
Submissions 44
Statutory Procedural Provisions on Penalties in Act and Regulations 45
Article 9(1) Constitution, Right to be Heard & Natural Justice 46
Discussion 48
Was the penalty justified? 51

Other Issues, Some Observations and Recommendations 52
Unconstitutionality 52
Delay in Timely Disposition of Disciplinary Proceedings 52
Delay in Empaneling the Board of Appeal 53
Procedural Fairness during the investigation of a Member 53
Importance of Judicial Function of the Tribunal 53
Procedural Fairness at the Penalty Hearing Stage 54
Composition of the Tribunal 54
Seizure by Police of Property 54
Policy and Law Reform 54
Acknowledgment 55
Conclusion 55

Introduction

1. This disciplinary proceeding has a protracted history. The Appellant was a sworn member of the service for more than 20 years. Towards the end of 2017, he was taken before the Police Service Disciplinary Tribunal (“the Tribunal”) on twelve original charges alleging various incidents of breaches in the performance of his duties contrary to the Police Services Act 2009 (‘the Act”) and Police Service Regulations 2010 (“The Regulations”). Nine charges were not pursued and withdrawn leaving three which proceeded to hearing. Another charge was dismissed during the course of the trial leaving two. The Tribunal at the conclusion of proceedings on 12 February 2019 delivered its oral ruling on 13 February 2019 dismissing one charge and finding the Appellant guilty of the remaining one.
2. The proven charge alleged that the Appellant had breached his duties under s50(1((d) of the Act when he did not report an officer, namely Olataga Saipipi (“Olataga”) for his negligence in the performance of his duties under the Regulations. By not reporting Olataga, he had misused his authority to obtain a benefit for someone else, which amounted to misconduct. The written ruling released on 20 February 2019 is sparse consisting of four paragraphs with a sentence each (“the Ruling”). This will be discussed in due course but suffice for now to say, the reasons were irrelevant to the proven charge.
3. The ruling also recommended to the Police Commissioner Fuiavailili Egon Keil (“the Commissioner”) a penalty of a reduction of the Appellant’s rank or pay or both. Following receipt of the ruling, the Commissioner summoned the Appellant before him without his counsel present, where the penalty of a dismissal from the Police service (“the Service”) was imposed effective forthwith. Prior to his dismissal, the Appellant was placed on suspension from 4 September 2017 pending the conclusion of Tribunal proceedings and penalty. The Appellant remain suspended to date pending final disposition of this appeal by operation of section 51B (3) (a) & (4) and s52 of the Act.
4. The nature therefore of this proceeding before the Board of Appeal (“Appeal Board”) is to deal with the Appellant’s appeal against the finding of guilt and termination penalty. The Appellant advances a number of grounds on appeal but the gist of which is that the finding of guilt is unsubstantiated by the evidence and that the reasons provided in the ruling were unrelated to the proven charge. As for his dismissal from the Service, the Appellant’s core contention is that it was unjustified and unconstitutional as it did not accord with principles of natural justice given he was deprived of an opportunity to be heard on penalty. The Appellant seeks a dismissal of both rulings and for remedies that he be reinstated to his rank with full compensation of salary and entitlements.
5. We are mindful that since the commencement of the Act, this is the first occasion the Appeal Board have been constituted to deal with an appeal of this nature. We have therefore taken time to consider all relevant legal issues and circumstances of the case in its entirety, being mindful that this will be a precedent case. So it is crucial we get it right from the start.
6. This is our unanimous reserved decision and included inter alia are:
   • (a) some observations and recommendations on matters of importance that are crucial for proceedings of this nature; and
   • (b) Proposed policy reform or review of the Act and Regulations that the Ministry of Police (“MOP”) may wish to consider in the near future.

Background Facts

7. It is crucial to set out the background facts and procedural history of this matter to contextualise and put things in perspective. The origins of this matter is traced to 2015. It commenced with a criminal complaint that was laid with Police at the Faleata outpost by Filoi Lesatele and others who were employees of Misa Telefoni (“Misa”). At the time, the Appellant was the officer in charge (“OIC”) at Faleata. The complaint and investigation led to the arrest of the suspect Anitelea Eneliko (“Anitelea’) who is also the complainant in the present disciplinary proceedings. Anitelea was charged with intentional damage and theft of cattle. However, for some reason, the theft charge was not pursued by Prosecution.
8. In the course of criminal investigations, the investigating team led by Olataga seized two cows from Anitelea’s property, which were claimed to belong to Misa. These cows formed the basis of the theft complaint. The cows were taken to the Faleata station and strapped to a tree at the backyard. At some stage, the cows were released to Misa; on the belief that he was the rightful owner. Sometime in 2016, Anitelea visited Faleata station where he discovered that the cows were released to Misa but according to Anitelea, he owned the other one. Frustrated with the turn of events, Anitelea sought the assistance of senior ranking officers at the main headquarters in Apia for the return of the cow. These officers were firstly ‘Kaioneta’, then the acting Commissioner at the time Afamasaga Michael Soonalole (“Soonalole”), and another believed to be ‘Fauono’. Each dealt with this grievance differently as will be discussed later.
9. Anitelea was also referred to the Professional Standards Unit (“PSU”) where his matter was handled by Ronnie Keti (‘Keti). Towards the end of 2016, Anitelea was still chasing up the return of the cow. On one of his visits, he was again referred to the PSU, where he encountered the Appellant whom by that time, was the OIC of that division. He claimed that subsequent encounters with the Appellant led to the decision that Olataga is to return or replace the cow. However, this did not come to fruition.
10. Consequently, Anitelea lodged a complaint with the Ombudsman’s Office and they in turn referred that complaint to the Commissioner to deal with it leading to a PSU investigation led by Tomasi Tu’ua (“Tuua”). At its conclusion, Tuua submitted a report resulting in the decision to bring 12 disciplinary charges against the Appellant which he denied. Thus prompting the empaneling of the Tribunal and now, this Appeal Board.

Procedural History

11. The transcript of the evidence (“Transcript”), shows there were unfortunate delays in composing the Tribunal panel (“the Panel”) as the Deputy Registrar (“DR”) had to be replaced. The final panel consisted of Superintendent I Soloi Tuimaunei, Superintendent Auapaau Logoitino Filipo and DR Oloalii S Peseta. Counsel representing the parties were Ms L Iliganoa Atoa for the Informant/Respondent and for the Defendant/Appellant; firstly it was Mr L Raymond Schuster (as he was known then). Then when he was elevated to the Bench, his brother Mr L Harry Schuster took over the file.
12. We draw from the transcribed record, that trial proceedings before the Tribunal spanned over a period of 14 months from 4/12/17 concluding on 13/02/19 with the delivery of the ruling. The hearing was due to commence on 4/12/17. However, when the matter was called, the Appellant and his counsel had not been informed so proceedings stood adjourned for mention on 6/12/17 for timetabling purposes. From there, it was further adjourned to 14/03/18 where it finally progressed to hearing.
13. It is also noted from the transcript that submissions of a no case to answer were made on 14/03/17 at the conclusion of the Respondent’s case where one charge was dismissed leaving two remaining ones. From the record, it seems the Appellant was informed of the Tribunal’s no case to answer ruling by letter dated 22/06/18 and when the matter was next called on 27/06/18, Mr Schuster had requested a written decision. It is understood that no such written ruling was made available. At the conclusion of the Appellant’s evidence, the matter stood adjourned for 13/07/18. For some reason however, it was not called on that date.
14. The record shows, that subsequent callings were scheduled but did not proceed. It is clear however, that the matter was significantly adjourned part-heard until the next recorded calling to hear closing submissions on 12/02/19. The Tribunal delivered its oral ruling the next day with the indication that a written decision would be made available by the end of that week. It is understood that on 20//02/19 the ruling was released to the Commissioner and he proceeded to impose the penalty.
15. The Appellant lodged his Appeal within time on 1/03/19. After a three months’ time lapse, Mr Schuster by letter dated 11/06/19 to the Commissioner, requested the empaneling of the Appeal Board so the appeal may progress to hearing. By letter dated 7/07/19 to the then acting Chief Justice, his Honour Justice Vui C Nelson, the Commissioner sought for the nomination of a District Court Judge to preside on the Appeal Board as required under s40(1)(a) of the Act. His Honour by letter dated 19/07/19, nominated Judge Alalatoa R Viane Papalii to preside as chairperson. There were no issues with this nomination.
16. Upon further inquiries by Judge Viane Papalii, it was revealed that the other two members of the Appeal Board were Inspector Solomona Natia and Superintendent Faagoto Patu. Following various correspondences, a meeting of the Appeal Board was set for 11/10/19 and at that meeting Superintendent Patu disclosed that she was cousins with counsel Mr Schuster and as such, she had reservations about presiding on the Appeal Board. It was resolved that Superintendent Patu is to be recused from proceedings given her close familial ties to Mr Schuster and to protect the impartiality and integrity of the trial process. The Commissioner was informed of this by letter dated the same date (11/10/19) and for a replacement panelist to be appointed. Nearly a year later by letter dated 7/10/20, the panel was informed that madam Assistant Commissioner Loraine Lees (“Lees”) had been appointed to replace Superintendent Patu.
17. Following this, a meeting was scheduled between the Appeal Board and counsel to discuss preliminary issues including timetabling. At this meeting, both Lees and Mr Schuster disclosed that they were related. This was discussed and the Respondent at the time did not take issues with Lees presiding. Both counsel were in agreement that this matter had been drawn out for too long and there was a pressing need for finality. Another meeting was scheduled for 4/12/20 to discuss preliminary issues and to finalise the schedule for filing documents; the Respondent to file their response to the Appeal by 18/12/20; the Appellant to file his submissions by 22/01/21 and the Respondent to file theirs by 26/02/21. The hearing was confirmed for 17 and 18 March 2021.
18. However, a letter dated 11/03/21 from the Attorney General (“AG”), received by the Appeal Board on 12/03/21 raised an important issue relating to a conflict of interest of Lees as she was a witness in the Tribunal proceedings. As the matter was already set down for hearing, it was decided that it would still be called in open Court on 17/03/21, for the Respondent to formally address this issue and to hear from all sides including Lees. Having heard from the parties, it was resolved that Lees should be recused given the requirements of s40(4)(b) and more specifically her involvement in the Tribunal trial as a witness.
19. The remaining Appeal Board members proceeded to set a new hearing date fully appreciating that there was an urgency in expediting the hearing without any further delay especially since it had taken two years to empanel the Appeal Board. The matter was then set down for hearing as a final adjournment on 12/04/21 with the condition, that the Commissioner secures a replacement panelist before then. By this date, Assistant Commissioner Misatauveve Iosefo Tofaeono had been appointed. However, as he had not received the trial documents, all agreed for a final adjournment to 21/04/21 to allow him time to peruse the documents. The matter finally proceeded to hearing on 21/04/21 and at its conclusion, we reserved our ruling.

Charges before the Tribunal

20. Three charges were before the Tribunal against the Appellant particularized in verbatim as follows:
    • (i) “That on 18/05/17 at Apia, being a sworn member of the Samoa Police Service, the defendant improperly used his position as a member of the service and also the in charge of the Professional Standard Unit used the Police Vehicle registered number 7037 for his personal use: Police Service regulations 2010 s30(1)(z).”
    • (ii) “That between 10/01/17 to 12/01/17, being a member of the Samoa Police Service, the defendant behaves in a manner namely by making a decision that Constable Olataga Saipipi will provide a replacement cow for the complainant but such a decision did not come true which brings or is likely to bring the Service into disrepute or which may affect the confidence the community has in the service: Police Service Act 2009 s50(2)(g).”
    • (iii) “That the defendant being a sworn member of the Police Service between 10/01/17 to 12/01/17, did not report Constable Olataga Saipipi for breaching the Samoa Police Service Regulations 2009, for negligence in the performance of his duty and misuses his status or authority to seek or obtain a benefit thereby committing a breach of duty amounting to misconduct. Police Service Act s50(2) (d).”

Tribunal findings

21. The first charge in (i) was dismissed after submissions of a no case to answer. In its ruling released on 20/02/19, the Tribunal found in respect of charge (ii) that “after deliberations and reviewing of the evidence presented before the Tribunal, the panel found the defendant is not guilty due to insufficient evidence”. In regards to the charge in (iii) it found that “after deliberations and reviewing the evidence presented before the Tribunal, the panel unanimously found the defendant guilty of the charge”. The reasons for the finding of guilt are recited below in verbatim:

“TRIBUNAL RULING

1. The defendant fail to consider quality checks of files received and direct staff to areas requiring improvement before files are forwarded to the National Prosecutions Office.
2. The Defendant fail to monitor the appropriate usage of Police assets such as vehicles, premises, equipment etc to ensure compliance with Ministry’s policies and procedures.
3. The Defendant fail to provide regular situational reports to the OIC, Uniform Policing.
4. The Defendant failed to uphold the highest standard of professional integrity articulated through the Ministry’s Statement of Purpose, Code of Conduct and principles of Employment”
22. Relying on s51B(1)(d) the Tribunal also recommended that the appropriate penalty to be applied to the defendant is (d) where the rank or pay or both be reduced.”

Penalty Ruling

23. After the ruling was handed down, the Commissioner summoned the Appellant to appear before him to dish out the penalty. According to the Appellant’s affidavit this occurred on 21/02/19 but the Commissioner deposed that it took place on 26/02/19 at approximately 9.25am. Questions to Mr Schuster to clarify the date confirmed his concession to the Respondent’s version. We therefore take the date of sentence as being 26/02/19.
24. It is uncontested that the Appellant’s counsel, Mr Schuster, was not informed of the date the penalty was delivered; rather he learnt of it from the Appellant after it took place and via a letter from the Commissioner which enclosed the Tribunal’s ruling. Similarly, it is undisputed that full reasons for the dismissal were not made available until the Commissioner filed his affidavit in response to the appeal sworn on 25/03/21. In that affidavit at [10], the Commissioner deposed that the decision to dismiss the Appellant was made after thorough review and consideration of the following:
    • (a) “The complete investigation file of all charges filed against Appellant in this matter;
    • (b) All evidence and witness testimonies presented at the tribunal trial;
    • (c) The personnel file and history of administrative complaints/ investigations against the appellant;
    • (d) Review and evaluation of internal Police Service Governing policies and legislation relative to professional and ethical standards expected of the Commissioned Officers such as the Appellant.”
25. He further deposed at [11] that the grounds for the decision to dismiss included:
    • (a) “The Tribunal finding of guilty against appellant for breach of duty amounting to misconduct in the negligence performance of his duties pursuant to s52(2)(d) of the Police Service Act 2009;
    • (b) Appellant’s history of disciplinary complaints and allegations of misconduct in the Service;
    • (c) Appellants history of unprofessional behavior, incompetence and negligence in the performance of his duties;
    • (d) The lack of respect and trust from members of the Service;
    • (e) Failure to instil confidence and display leadership skills fitting to a commissioned officer; and
    • (f) Diminishing respect and confidence in the Service by the Community due to Appellant’s unprofessional reputation.”

The Appeal

26. We will deal with this section in the order in which documents were filed. The appeal is brought pursuant to s40 of the Act and relies on the following grounds:
    • (a) The Respondent never specified and established in the charge as phrased the particulars by which the Appellant was negligent in failing to charge officer Olataga Saipipi; and
    • (b) The complainant failed to provide evidence to substantiate the defendant knew of any particular wrongdoing by officer Olataga Saipipi but failed to charge him and therefore did not meet the required burden of proof to rule that the charge has been proven; and
    • (c) The Tribunal erred in fact and in law as the grounds stated by the Tribunal in its findings were never part of the charge the defendant was charged with and put to him to answer.
27. As to the appeal against the dismissal penalty, it is primarily on the ground that the Commissioner erred in fact and in law when he terminated the Appellant’s service as the Tribunal ruling was also wrong in fact and law. Importantly, the penalty breached the principles of natural justice and constitutional right to be heard.
28. The Notice of Appeal is accompanied by the Appellant’s affidavit. The Respondent opposes the appeal and in their Notice of Opposition, they rely on the following grounds in verbatim:
    • (i) “That the findings of the Tribunal were based on established evidence available for the Tribunal to determine on;
    • (ii) That the decision of the Commissioner was based on findings of the Tribunal which did not err in fact and /or in law;
    • (iii) That the decision of the Commissioner to dismiss the Appellant was lawful; and
    • (iv) Upon any further grounds that may be addressed upon receiving the Appellants’ submissions”.
29. In the Notice in Response to the Respondents Opposition, the Appellant developed his grounds of Appeal to include inter alia the following in verbatim:
    • “That the Commissioner’s decision to dismiss the Appellant is wrong in fact and in law as the decision violates the Appellants Constitutional Right to a fair hearing under Article 9 of the Constitution of Samoa as the:
      • (i) Commissioner made and issued his decision without giving the Appellant the opportunity to be heard on his decision to terminate the Appellant’s services and nor did he give the reason/s upon which he based his decision.
      • (ii) The authority granted to the Commissioner to issue a penalty different from the penalty arrived at by the Police Tribunal Panel is unconstitutional because the Commissioner was never part of the panel and therefore never granted the Appellant the opportunity to be heard by him.
      • (iii) Section 51B of the Police Service Act 2009 does not specify a mechanism or procedural process that grants the Appellant a fair hearing before the Commissioner passes sentence and is therefore unconstitutional against due process required under Article 9 of the Constitution.
      • (iv) In essence section 51B is unconstitutional as the issuing of sentencing by the Commissioner does not comply with the requirements of Article 9 of the Constitution.

Legislative Framework

30. Tribunal proceedings against a sworn member charged with breach of duties are brought pursuant to s51A of the Act. Conduct that may amount to a breach of duty are set out in s50 of the Act:
    • “50. Conduct amounting to breach of duty – (1) This section does not apply to the Commissioner or an Assistant Commissioner.
    • (2) A sworn member of the Service commits a breach of duty amounting to misconduct if the member:
    • a) breaches a provision of this Act, or any Regulation or Instruction under this Act;
    • b) commits any criminal offence;
    • c) fails to obey a lawful order given to, or applying to the member;
    • d) is negligent in the performance of the member’s duty;
    • e) fails to disclose, and take reasonable steps to avoid, any real or apparent conflict of interest in relation to the member’s service;
    • f) acts in an insubordinate manner, sexually harasses, or displays any disrespect to a member of the Service or any member of the public; and
    • g) behaves in a manner which brings, or is likely to bring, the Service into disrepute, or which may affect the confidence that the community has in the Service.
31. This is not the only enactment that deals with breaches of sworn members. Regulation 30 of the Regulations is a comprehensively code which provides for conduct that may amount to a breach of the regulations. The obvious difference vis-a-vis the two enactments is that a breach under the Act amounts to misconduct whereas those under regulation 30 are a breach of the Regulations.
32. Penalties that may be imposed by the Commissioner after the disciplinary hearing before the Tribunal are set out in s51B (1):
    • “51B. Penalties – (1) A Tribunal may recommend to the Commissioner one or more of the following penalties against the charged member:

a) no punishment be imposed;

b) be cautioned;
c) be discharged without the charge having been proved;
d) the rank or pay, or both be reduced;
e) a fine not exceeding 20 penalty units be imposed;
f) be dismissed from the Service;
g) suspension without pay.
(2) The Commissioner is not bound by any recommendation of a Tribunal.
(3) A dismissal decision is not effective until:
(a) the decision is confirmed after an appeal; or
(b) ...
(4) The member is taken to be suspended, by operation of this subsection, from the Service without pay until the dismissal becomes effective under subsection (3).
(5) If the Commissioner decides to terminate a charged member pursuant to subsection (1)(f) for a matter referred under section 51(4), the Commissioner must ensure the charged member is given the right to respond to the decision to terminate him or her from the Service before he or she is terminated.”

33. The empaneling of the Appeal Board is governed by s40 of the Act and triggered by the timely filing of a notice of appeal after a Tribunal hearing. Here, both sides did not take issue with the final composition of the Appeal Board. The relevant enactments dealing with trial procedures before the Tribunal and Appeal Board are set out in in sections 41 and 54 of the Act as well as regulation 39.
34. Section 53 deals with appeals involving breach of duty:
    • “53. Appeals involving breach of duty – (1) A member...who is charged in writing with a breach of duty which the member denies or is deemed to deny in writing but which is found to have been proved under section 51, and who is dissatisfied with the finding of the Tribunal or the punishment imposed by the Commissioner, may appeal to a Board of Appeal.
    • (2) ...
    • (3) An appeal shall be commenced by a notice of appeal in writing stating the grounds of appeal addressed to the Commissioner and transmitted to the Commissioner by the appellant within 7 days after the date on which the result of the inquiry has been communicated to the appellant.
    • (4) The Board of Appeal, after hearing the appeal may:
    • (a) allow or dismiss the appeal; or
    • (b) vary the penalty imposed on the appellant; or
    • (c) grant or refuse pay during the member’s period or periods of suspension; or
    • (d) make any other such order as the Board of Appeal thinks just.
    • (5) If in the opinion of the Board of Appeal any appeal is frivolous or vexatious, the Board may order the appellant to pay the costs of the appeal, and the sum so ordered to be paid may be deducted from any pay due or accruing due to the appellant.
    • (6) Costs of the appeal shall otherwise be in the discretion of the Board.
35. Article 9 of the Constitution of the Independent State of Samoa (“The Constitution”) is relevant to these proceedings which states:
    • “9. Right to a fair trial - (1) In the determination of his or her civil rights and obligations or of any charge against him or her for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law...
    • (2) Nothing in clause (1) shall invalidate any law by reason only that it confers upon a tribunal...power to determine questions arising in the administration of any law that affect or may affect the civil rights of any person...”
36. Regulation 37 is equally relevant here which provides that “a member who pleads guilty to a charge or who is found guilty of a charge shall be given an opportunity to make a plea by way of explanation and mitigation.”

Approach on Appeal

37. Discussions with both counsel for the Appellant and Respondent confirmed their consent to the following which assisted in expediting this matter:
    • (a) A rehearing of the evidence was not necessary;
    • (b) Neither party intended to call witnesses or new evidence and it is noted there was no application of that nature before the Appeal Board;
    • (c) The appeal to proceed on the basis of the transcribed evidence and documents that were before the Tribunal;
    • (d) The tendering by consent of the Affidavits by the Appellant and the Commissioner.
38. With this in mind, the approach we proceeded on in this appeal was in the form of a rehearing by reviewing the transcribed evidence and other documents before the Tribunal including submissions before the Appeal Board. We approach this appeal with the mindset that we must come to our own view on the merits and need not defer to the view of the Tribunal. We remind ourselves that when forming our view of the merits, we are entitled to take into account that the Tribunal had the advantage of observing the witnesses’ demeanor and had the opportunity to assess issues on credibility. So where credibility determinations of the Tribunal are in issue on appeal as it does here (to an extent), we will take a cautious approach.
39. We remind ourselves that the extent of consideration of our general powers on an appeal of this nature, is a matter of our own judgment and none other. The Appeal Board have powers under s53(4) of the Act to order either of the following:
    • (a) allow or dismiss the appeal; or
    • (b) vary the penalty imposed on the appellant; or
    • (c) grant or refuse pay during the member’s period or periods of suspension; or
    • (d) make any other such order as the Board of Appeal thinks just.
40. The Respondent did not cross - appeal the charge that was dismissed. We were not asked to interfere. Accordingly, the ruling in regards to the dismissed charge remains unchallenged. The focus therefore of this decision is on the ruling relating to the proven charge and penalty.

Standard of Proof

41. The Act and Regulations are silent as to the standard of proof to apply and this is where common law comes in. Before the Tribunal and the Appeal Board, the parties concurred that the standard of proof to adopt in a disciplinary hearing of this nature is the civil standard of on the balance of probabilities. The Appellant relied on the case of Briginshaw v Briginshaw[1] adopted by Justice Slicer in the Supreme Court case of Alii & Faipule of Laulii v Trustees of the Estate of Jacob Helg[2]. The same civil standard was applied in the disciplinary proceedings of Tuala Auimatagi Iosefo Ponifasio v Council of Samoa Law.[3]
42. Dixon J summarized the classic passage in Briginshaw[4] as follows:
    • “The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal...”
43. We concur with counsel that the civil standard applies here. We are of the view though that it applies to all disciplinary proceedings unless an occupational governing Act explicitly states otherwise. We observe from the proceedings in the Tribunal that it seemed to proceed on the footing that it was quasi-criminal as evident from questions posed, submissions, and similarly arguments before us. This is misconceived. Although the allegation is framed as a “charge” in a criminal sense, and a plea is required to be entered, the proceedings are in every sense, civil in nature and not quasi-criminal. We say this for the reasons canvassed below in [44] to [49].
44. There are a number of material differences in scope of inquiry, process and purpose between a criminal proceeding before the District or Supreme Court and disciplinary proceedings of this nature. For the latter, it is inquisitorial and held before a panel which includes two senior members of the Service. Whereas for criminal, it is adversarial and held either before a Judge siting alone or jury for serious offending attracting life imprisonment. Compared to criminal proceedings, a Tribunal have general powers to summon witnesses and admit evidence which is otherwise not admissible in criminal proceedings.
45. The nature of and scope of public interest in disciplinary proceedings is another factor. The purpose of disciplinary proceedings is distinguished in that:“it is to ascertain if the member met appropriate standard of conduct in the occupation concerned and what may be required to ensure that in the public interest, such standards are met in the future. Protection of the public is the central focus”^[5]. So protection of the public is more prominent in disciplinary proceedings. With criminal matters it is punitive in nature. Another important distinguishing factor is in relation to the determinations between the two proceedings. While a criminal trial requires a determination of each ingredient of the charge beyond a reasonable doubt, disciplinary proceedings before a Tribunal on the other hand, must simply determine, if it is satisfied that the member is guilty of conduct detrimental to the service (i.e. misconduct).
46. There is a long line of jurisprudence in New Zealand (“NZ”),^[6] Australia^[7], Canada^[8] and Hong Kong^[9] confirming that the civil approach continues to apply in occupational disciplinary proceedings with England applying it flexibly depending on the seriousness of the allegation.^[10] The application of the civil standard of proof in occupational disciplinary proceedings is now settled in New Zealand, as confirmed in the leading Court of Appeal case of Z v Dental Complaints Assessment Committee (DCAC).^[11] That case was adopted in Samoa in the Samoa Law Society disciplinary proceeding against Ponifasio.^[12] Z v DCAC concerned disciplinary proceedings brought against the Appellant, a dentist by profession, after he was acquitted by the jury of indecent assault. An important preliminary question raised before the Court of Appeal concerned the standard of proof that applies to disciplinary proceedings under the NZ Dental Act 1988. His Honour McGrath J delivering the judgment of the majority stated that:^[13]
    • “[97] The common law recognises two standards of proof. The lower standard, the balance of probabilities, is that generally applied in civil proceedings. It is well established that professional disciplinary proceedings are civil and not criminal in nature. That is because the purpose of statutory disciplinary proceedings for various occupations is not to punish the practitioner for misbehaviour, although it may have that effect, but to ensure that appropriate standards of conduct are maintained in the occupation concerned.”
47. At [102] and [112] their Honours observed:
    • “[102] The civil standard has been flexibly applied in civil proceedings no matter how serious the conduct that is alleged.^[14]...Balance of probabilities still simply means more probable than not. Allowing the civil standard to be applied flexibly has not meant that the degree of probability required to meet this standard changes in serious cases. Rather, the civil standard is flexibly applied because it accommodates serious allegations through the natural tendency to require stronger evidence before being satisfied to the balance of probabilities standard.”
    • “[112]...There is accordingly a single civil standard, the balance of probabilities, which is applied flexibly according to the seriousness of matters to be proved and the consequences of proving them. We are satisfied that the rule is long established,^[15] sound in principle, and that in general it should continue to apply to civil proceedings in New Zealand.”
48. On the question of whether there should be an exception in NZ under which the criminal standard applies in occupational disciplinary proceedings, their Honours held that:
    • “Accordingly, we are of the view that in this country there is no good reason for creating an exception covering disciplinary tribunals. A flexibly applied civil standard of proof should be adopted in proceedings under the Act and other similarly constituted disciplinary proceedings in New Zealand unless there is a governing statute or other rule requiring a different standard.”
49. Adopting the principles of law enunciated above, for the Tribunal in the instant case to be satisfied that the Appellant is guilty of the charge alleged, it is not enough for it to merely make up its mind that there was a breach and that it automatically amounted to misconduct. It must do so on the balance of probabilities. What this simply mean is, the Tribunal must be reasonably satisfied on the evidence that the occurrence of the event was “more probable than not”.[16] To do this the Tribunal and Appeal Board alike, must bear in mind the test in Briginshaw that:[17]
    • “...[R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal”.

Primary Issues on Appeal

50. We identify from the appeal and documents before us three key issues as follows:
    1. Did the Appellant act in breach of his duties as charged and if so, did this breach amount to misconduct?
    2. Were there adequate reasons to substantiate the ruling by the Tribunal?
    3. Was there procedural fairness when the Commissioner imposed the penalty and if so, was there a breach of the rules of natural justice and Article 9 (1) of the Constitution?
51. We propose to deal with this appeal by answering these key issues as in our view, it encompasses the totality of the primary concerns raised on appeal.

Summary of Evidence before the Tribunal

52. We begin by summarizing oral evidence before the Tribunal. We have taken this exercise given the reasons for the ruling are sparse and do not comprehensively analyse or assess the evidence.
53. To prove its case, the Respondent called four witnesses namely, the complainant Anitelea, the investigating officer Tuua, Lees and Vaalele Tofa (“Tofa”). The Appellant elected to give evidence and he also called Salale. Lee’s and Tofa’s evidence relate to the charge that was dismissed and as there is no cross - appeal of that charge, it is therefore unnecessary to refer to their evidence.

Anitelea

54. Anitele’a’s evidence was that there was a Police investigation against him led by Olataga where he was charged back in 2015 for willful damage and theft of cattle. The theft charge however was withdrawn and he was sentenced for willful damage. During investigations, Olataga had removed from Anitelea’s property two cows. When he learnt about this he went to the Faleata outpost where he saw the two cows strapped to a plant at the back of the building. He said he had informed Olataga on that occasion that one cow belonged to him. Whilst his case was pending for conclusion he visited the Faleata post again where he noticed the cows were no longer at the backyard. So he enquired with Olataga as to the cows’ whereabout where he replied, “o la e gaga”.
55. At the conclusion of his case around about March 2016, he returned to the Faleata outpost as he was unhappy with how his criminal case was handled. He asserts that it was on this occasion that he first saw the Appellant and he informed him that one cow belonged to him. According to Anitelea, the Appellant had replied “pe ua alu atu e su’e le mea e falepuipui ai” but he also heard him saying he would inform Olataga. He returned to Faleata the next day and both Olataga and the Appellant were there. He claimed Olataga had threatened him that he will re-file the theft charge which was withdrawn as a favour to him. On the same day, he decided to go to the Apia headquarters where he saw the late Kaioneta and he referred him to the PSU.
56. At PSU he could not recall the person he spoke to. But on his next visit, he was told that his complaint was handled by Keti. In a subsequent visit Keti had informed him that they found the cow so he requested its return but Keti replied that he was waiting for a document from the AGs Office. He waited some more, but still no news so he paid another visit to the main headquarters. At the time Soonalole was the acting commissioner and he reported his grievance to him. Soonalole had summoned Olatoga who relayed to them that he had returned the cow on instructions of his OIC. Olataga on that occasion was instructed by Soonalole to locate the cow and return it to Anitelea. At some other date, he again visited PSU and Samuelu Afamasaga was the OIC there, so he too knew of his grievance.
57. Towards the end of 2016, when Salale was the acting Commissioner, he again visited the headquarters but he was unable to see him. However, his secretary referred him to the PSU where he discovered that the Appellant was the OIC in that division. He recited to him the reason for his visit where the Appellant told him to return on Wednesday of that week. He did and they met with Olataga where Anitelea claimed the first question the Appellant asked was “povi pe tupe” He replied he wanted his cow. The Appellant then instructed Olataga to replace the cow and according to Anitelea, he had requested that this be done by January 2017.
58. By that month however, he returned to PSU, but Olataga had requested if he could have until February, as he was busy with his children’s school stuff. He agreed. However, by February he followed up once again with the Appellant but was told that he will contact Olataga as to why it had taken him that long to replace the cow. By the end of February 2017 heading to March, there was still no progress so he decided to lodge a complaint with the Ombudsman.
59. Anitelea was cross - examined by former counsel as to why he did not inform Tuua that the Appellant had asked him if he wanted the cow or money; that this part of his evidence was fabricated and that he had mistaken the Appellant with Soonalole. He agreed that it was Soonalole who had asked him if he wanted the money or cow but also said he had informed Tuua of what he said in his oral testimony.

Tomasi Tuua

60. Tuua gave evidence that this matter arose during the time the Commissioner was on suspension from the Service and the most senior ranking officers alternated as acting commissioner. He had worked in the PSU since 2013 and familiar with the complaint by Anitelea as it was first lodged in 2016. When the Commissioner was reinstated he was instructed to inquire into the conduct of the Appellant regarding misusing police vehicle for his personal use, as well as Anitelea’s complaint as referred from the Ombudsman’s Office.
61. At the conclusion of his investigation, he submitted a report where he formed the view that the Appellant had no authority in his role as OIC of PSU to make any decision involving the cow, only the Commissioner or Assistant Commissioner. He also claimed there was a conflict of interest on the part of the Appellant as he was the OIC at Faleata outpost where the complaint originated during criminal investigations. In addition he was the same OIC at PSU who made the deal with Olataga and the complainant for Olataga to replace the cow.

Leiataua Aviga Salale

62. The essence of Salale’s evidence was that he was the acting Commissioner when Anitelea approached him for assistance regarding the cow. He remembered summoning both Olataga and the Appellant where he directed that Olataga either return or replace the cow. Salale was firm in his evidence on this aspect and did not falter under cross - examination.

Tupai Sapani

63. According to the Appellant, he remembered well the investigation relating to the criminal charges against Anitelea as he was the OIC at the time. He also recalled the cows were seized but in his evidence this was in accordance with normal police practice and procedure given there was a theft charge against Anitelea. He was unaware however that the theft charge was withdrawn by Prosecution as he never saw the file again after it was released to Prosecution for their purposes. He informed that he did not receive a letter from the NPO either informing of any loopholes in the theft allegation or if further evidence was required. Rather the charges were withdrawn without his knowledge as OIC.
64. In regards to Anitelea’s claim of ownership of the cow, he testified that when the cows were brought to Faleata, Misa’s employees identified the both cows as belonging to Misa. He rejected Anitelea’s evidence that he had met with him and Olataga at Faleata regarding the cow. He was adamant that the first encounter he had with Anitelea was at PSU and he recalled Anitelea did not want to lay a complaint rather he sought an amicable resolution of his concerns regarding the cow. He also recalled he had informed Anitelea he should find a lawyer to take the matter to court as MOP do not have any authority to determine ownership of the cow, only the court. However, he did not heed his advice.
65. When asked about the charge, he said the investigation was a personal vendetta against him and that he did not see proper to report or charge Olataga as he was unaware of any wrong doing he committed or misconduct relating to the cow. He was firm in his evidence it was Salale who instructed him to direct Olataga to return or replace the cow. In accordance with the chain of command only Salale could have made such a directive. His duty then as a lower ranking member is to facilitate the resolution of the matter as directed.

First Issue: Did the Appellant act in breach of his duty as charged and if so did it amount to misconduct?

Unpacking the Charge

66. The question posed above relates to the grounds of appeal in a), b) and c) so a good starting point is the charge. Firstly, we say at the outset that the charge is ambiguous and confusingly drafted. We have had some difficulties making sense of it and we sense from questions posed by the Tribunal they too struggled with it. The grounds of appeal and submissions by the Appellant before the Tribunal and here shows they too had problems with it.
67. However, the charge was brought solely under s50(2)(d). In the preamble sentence the described duty the Appellant neglected to perform was the failure to report Olataga for his negligence in the performance of his duties under the Regulations. But the particulars also contained the phrase “misused his status or authority to seek or obtain a benefit for any other person.” The Respondent’s case was these particulars related to the conduct of the Appellant.
68. In our respectful view, the poorly drafted particulars of the charge convoluted its intent adding to its ambiguity and thus the inevitable and unfortunate confusion. The charge was amorphous and should have been remedied to diffuse its prejudicial effect. We say this bearing in mind that “in a professional disciplinary context, ...the focus is upon the conduct of the member (our emphasis) and not upon the consequences”.[18] So it is crucial that the incidents of breach are clearly spelt out or particularised.
69. Notwithstanding the poorly drafted particulars, no amendment was sought nor was there a request by the Appellant for further and better particulars; rather the parties proceeded to trial on the charge phrased as it was. It seems the Respondent filled in the loopholes via its opening, during trial and closing submissions. However, regulation 35 (1) mandatorily provides that where a member is charged with an offence “...the charge shall be in writing and shall clearly set out all the breaches alleged against the member with sufficient details to permit the member to know of the matters alleged and to prepare any defence in relation to them.”
70. This enactment is clear on the sufficiency and clarity of the substance of a charge brought against a member in disciplinary proceeding. The fact that it is mandatorily legislated connotes Parliament considered it important. So there should be no room for shortcutting the process. It is the same principle which govern charges brought under our criminal law as provided under s24 of the Criminal Procedure Act 2016. In Meredith Ainuu v Ah Him[19] Sapolu CJ, had this to say about the function of a criminal information under s16 of the repealed CPA 1972 which is almost identical to s24 of our current CPA:
    • “It is clear from s.16 that an essential function which an information is supposed to perform is to fairly inform the defendant of the substance of the offence with which he is charged. This is necessary to enable the defendant to prepare and present his defence. But that is not the only function of an information. At common law, the information must also fairly inform the Court in which it is laid of the nature of the offence charged.”
71. Then at page 5 the Sapolu CJ, referred to the case of Police v Wyatt where McCarthy J stated:
    • "[All] this does not mean that when a person charged is left in doubt as to what really is the allegation against him, he is not entitled to further details. If he is embarrassed, he is entitled to an order for those necessary to inform him adequately; and I would expect that Magistrates will freely order such particulars. A refusal by a Magistrate to order additional particulars, when the justice of the case requires them, would, in my mind be reviewable on appeal."
72. The same principle guides civil proceedings in the Supreme Court and District Court where the Court may order a Plaintiff to provide a more explicit statement of claim so the defendant may be fully informed of the nature of the claim before replying.[20]
73. In the present case, the deficiencies in the particulars of the charge we identify are:
    • (i) Who was the Appellant meant to report Olataga to?
    • (ii) What provision of the Regulations was breached by Olataga?
    • (iii) What duty did Olataga neglected to perform?
    • (iv) What are the particulars of the status and authority of the Appellant that he misused and in what way did he do this?
    • (v) What was the benefit obtained and for whom was it for?
    • (vi) For iv) and v) what was the relevance of these particulars to the breach cited under s50(2)(d)?
74. As a rule of thumb, the first stop for any charge before a disciplinary Tribunal even a criminal court itself, is to ensure the charge is sufficiently particularized to inform with clarity all concerned of the identity of the person involved, substance of the charge, nature of the breach of duty and how it amounts to misconduct. The same applies if it is a breach under the Regulations.
75. Equally important, the particulars must reflect the cited charging provision and include one incident of breach under the Act but not trumped together with those under the Regulations. This would ensure there is no significant prejudice or embarrassment to a member like the Appellant leading to irregularity during the course of the trial.[21] The job of ensuring this is done lies with the Respondent or Informant from the start to the end.
76. On the same token, a member like the Appellant, who feels prejudiced or embarrassed by the deficiencies or defects of material particulars ought to seek further and better particulars to clarify the charge prior to the hearing. Rather than strategically leaving it for closing submissions as he or she has little to gain from it. This in our opinion goes to the constitutional right of a member under Article 9(1) to be informed promptly of the charge in a language he or she understands. This is also linked to the right to have adequate time and resources to prepare for trial.[22] More importantly it goes to achieving the ends of justice.

Submissions

77. Ms Atoa for the Respondent in their closing submissions[23] before the Tribunal and those in response to the appeal[24] clarified that the essence of the charge was that the Appellant had misused his rank as an officer in charge of PSU., to make a deal between Olataga and Anitelea for Olataga to replace the cow instead of reporting or charging Olataga for illegally removing the cow. By not reporting or charging Olataga, the Appellant was therefore negligent in the performance of his duties.[25] These facts however as we observed in [74] and [75] should have been clearly particularized in the charge.
78. Was the Appellant embarrassed or prejudiced by this omission? Of course he was. But it is equally clear that the Respondent did its best to clarify its case. The Appellant’s former counsel and equally the Tribunal, seemed to accept progressing proceedings on the footing of Ms Atoa’s clarifications. But then again, this omission or defect could have been easily remedied by an amendment removing the irrelevant particulars and inserting the material ones.
79. The Appellant does not contest that the cow was removed by Olataga and his investigating team during investigations. It is undisputed as well that the cow was not returned or replaced as at the time of the Tribunal hearing. But the Appellant contends that it was not him who made the decision to replace the cow. Rather it was on instructions of Salale who was the acting Commissioner at the time and that in terms of chain of command under the Act, he was bound to comply with it.
80. The Appellant submits at paragraph 3 of his submissions on appeal, that to prove the charge, the Respondent must show that the Appellant ought to have known or made aware that between 10/01/17 to 12/01/17, Olataga was negligent in the performance of his duty and misused his status or authority to seek or obtain a benefit for any other person. Further, the Respondent must also prove that the Appellant having knowledge failed to report officer Olataga and thereby breached his duty amounting to misconduct.
81. The Respondent submits that there was uncontested circumstantial evidence before the Tribunal on this aspect from which the Tribunal could have inferred, that the Appellant, did misuse his status as the PSU OIC, to make a deal for Olataga to replace the cow, instead of charging or reporting him for unlawfully removing it. So by not charging Olataga, this allowed him to get away with his wrong doing. [26] In their submission, this was also attributed to the Appellant’s conflict of interest as he was the OIC at Faleata in 2015 where the removal of the cow incident originated. The Respondent relied on the following evidence by Anitelea before the Tribunal to support their argument:
    • (i) 2016: Ou te oo atu ile PSU o loo saofai mai ai le tagata na amataina la’u mataupu. (Prosecutor; O ai lea?) Sapani. (Prosecutor: Saofai mai i fea?) O ia lea ua vaaia le PSU, na ou oo atu ai ma ma talanoa ma ou fai iai o lea lava ou te finauina la’u povi. Na faapea mai sei feau Olataga ona fai lea o se matou tala ae ou alu ona ou usu mai lea i le aso e sosoo ai. Na ou toe sau lea i le aso Lulu ma o lana fesili muamua mai a lea a Sapani ia te a’u “Povi pe tupe?”
    • (ii) Sa ou fai iai ou te manao i la’u povi. Sa fai loa Sapani e tago e totogi mai la’u povi ia Olataga lea. O lea o lea alu Olataga i Savaii e su’e mai se povi e sui ai le povi a Telea. Sa ou fai iai oute manao i la’u povi i le masina lea.
    • (iii) Ianuari 2017 lea ua ou toe sau ai. Sa ou fai ia Sapani o lea ua uma le tatou tuugatala ae manaomia se pepa e saini ai latou deal ina ia aloaia ai o le tatou tuugatala. Ae saunoa mai Sapani e tuu atu la’u faatuatuaga o lea ua uma ona fai mai Olataga e alu e aumai le povi i le masina lea.
    • (iv) Na ou alu i le matou fale sa ou faatali uma atu Ianuari, oo atu ia Fepuari ina ua ou fiu loa oute faatali ma ou toe sau foi i le ofisa ma ou fai ia Sapani. O le tala sa tuuina mai sei tago e vilivili Olataga pe o lea le mea ua tuai ai na aumai la’u povi. Uma atu Fepuari afa ifo mati e leai lava se ia oo mai lava i le taimi lenei.
82. The Respondent argues, this evidence is unrebutted as the Appellant failed to put his case to Anitelea as required under Browne v Dunn[27] so he may have the opportunity to reply to contradictory evidence the Appellant proposed to call.

Analysis

Unsatisfactory and insufficient Evidence

83. Before launching into an analysis of the evidence, we recast our minds once again on the purpose of disciplinary proceedings, as envisioned under the Act and its accompanying Regulations. Disciplinary proceedings of this nature are directed at the individual member. Its primary purpose is not to punish the member but to ensure appropriate standards are practiced and met and in doing so, it protects the public interest. Having analyzed the evidence in its totality, we are satisfied that there was insufficient evidence before the Tribunal, to support its conclusion that the charge was proven on the balance of probabilities.
84. Ideally, the charging provision should sufficiently state with clarity the essence of the allegation. This would then inform the parties of the elements to prove and what is required. The charging provision at s50(2) (d) cannot be any clearer, a sworn member of the service commits a breach amounting to misconduct if the member is negligent in the performance of the member’s duty. However, the charge in its ambiguous state and evidence called falls far short of satisfactorily proving this to the requisite standard.
85. As previously acknowledged, it is crystal clear from the evidence, that Anitelea’s grievance has a protracted history spanning from 2015 to 2019. It went through a number of acting Commissioners and OICs in the PSU even a complaint lodged with the Ombudsman’s Office. We are baffled it took this long to resolve a simple grievance. We also find it puzzling that there were other former acting commissioners, such as Soonalole, Salale and Fouono, OICs in the PSU like Samuelu and Keti who originally handled the complaint, yet they were not included in the investigations. Also with the exception of Salale who gave evidence and Kaioneta who is now deceased, none of these people were called to give evidence. Rather the Appellant was singled out and subsequently charged. The question is why?
86. We note from the transcript that there was mention of other documentary evidence like the letter from the Ombudsman, Tuua’s report at the conclusion of his investigation and others that were readily available but not tendered as evidence. We note as well from the reasoning at (4) of the Tribunal ruling the reference to the Code of Ethics, Ministry’s Statement of Purpose, and Principles of Employment but these were not tendered either. We requested however for these to be provided and Ms Atoa made these available.
87. Apart from this, there were numerous references to hearsay evidence by the witnesses especially Anitelea and understandably, Mr Schuster objected. What weight if any was given to such evidence? Unfortunately, there was no full analysis by the Tribunal on this crucial aspect but this exercise should have been undertaken. We wish to say, however, that the inquisitorial nature of disciplinary proceedings does allow room for hearsay evidence but it comes down to the issue of the quality of the evidence or reliability and probative weight to be allotted to such evidence. In Z v DCAC,[28] the Court there said:
    • “The Tribunal is engaged in an inquiry, rather than a trial. It can receive evidence that would not be admissible in a court of law. It must observe the rules of natural justice, but is mandated to take an inquisitorial approach in doing so.”
88. Similarly in Esera v National University of Samoa[29] Sapolu CJ presiding had this to say:
    • “The third matter is the admissibility of hearsay in the proceedings before the ASPRC which had caused much confusion. It must be pointed out that proceedings before a disciplinary tribunal should not be treated as proceedings before a Court of law. The nature of the two proceedings are different and should not be treated in the same way. It must be borne in mind that the rules of evidence, which include the rule against the admissibility of hearsay, which apply to a trial before a Court of law, do not apply to proceedings before a tribunal. A tribunal is not bound by such rules. Hearsay is admissible in such proceedings and may be taken into consideration by a tribunal in forming its decision. But before doing so, the tribunal must give a fair opportunity to the person concerned to comment on or contradict such evidence. The tribunal should then make due allowance when assessing the weight or worth to be accorded the hearsay evidence by having regard to the fact that the maker or author of the hearsay was not available for cross-examination.”
89. His Honour CJ Sapolu had also referred with approval to the principles enunciated in Miller Ltd v Minister of Housing and Local Government[30] where Lord Denning MR with his usual ability to express complex legal principles in simple language, stated the position in these words:
    • "The inspector relied on Mr Fogwill’s letter. So did the Minister in his decision. Counsel for the appellants said that they ought not to have relied on it at all. It ought not even to have been admitted because it was hearsay. It was not on oath, no opportunity was given to test it by cross-examination, and it was objected to. Counsel said that in these circumstances it was contrary to natural justice for it to be admitted.”
    • "In my opinion this point is not well founded. A tribunal of this kind is master of its own procedure, provided the rules of natural justice are applied. Most of the evidence here was on oath, but that is no reason why hearsay should not be admitted where it can fairly be regarded as reliable. Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a Court of law (see R v Deputy Industrial Inquiries Commissioner, ex parte Moore [1965] 1 A11 ER 81)...Hearsay is clearly admissible before a tribunal.
    • "No doubt in admitting it, the tribunal must observe the rules of natural justice, but this does not mean that it must be tested by cross-examination. It only means that the tribunal must give the other side a fair opportunity of commenting on it and of contradicting it (see Board of Education v Rice [1911-1913] All ER Rep. 36 and R v Deputy Industrial Injuries Commissioner, ex parte Moore [1965]1 All ER 81)."
90. Apart from the above principles, our Evidence Act 2015 at section 10 deals with general rules as to the admissibility of hearsay evidence.
91. In regards to the evidence relating to the duty breached and if it amounts to misconduct, this was far from satisfactory. The Respondent had relied solely on the evidence of Anitelea and Tuua to prove the charge. However, the Appellant had countered and quite rightly so, that he was unaware of a breach by Olataga under the Regulations. Olataga’s breach is said to be his unlawful removal of the cow. However, there was no evidence before the Tribunal from any of the witnesses, including Tuua himself that an allegation of a breach of the regulations against Olataga for negligence in the performance of his duties by unlawfully removing a cow, had been found proven either before a Tribunal or via a guilty plea.
92. We say this because by implication, the specific reference in the charge to the phrase “for not reporting Olataga Saipipi for breaching the Police Service Regulations 2009 for negligence in the performance of his duties” imputes that Olataga must have been charged under the Regulations and his breach was proven. But there was no such evidence. Yet it is this very act which forms the crux of the charge of negligence amounting to misconduct against the Appellant. No evidence of any kind was adduced to substantiate this. We were invited to infer that knowledge on the part of the Appellant may be drawn from circumstantial evidence. We have no problems with this proposition provided there is a factual or evidential basis for us to come to such a logical conclusion. But there was absolutely zilch.
93. There were obviously other witnesses that could have been called, (but were not), with first - hand knowledge of matters at issue which might have added some probative weight. As to why we are not privy to that information. For instance, at the core of the charge is Olataga whose alleged conduct lead to the charge against the Appellant. He also had direct knowledge of the cow incident as the investigating officer. He was not called but his evidence was crucial as it goes to the issue of whether there was negligence of a standard below that required of an officer to prompt the Appellant to report him. But we are not going to presume whether such evidence if called would have met the test. We are simply pointing out that the Respondent’s case was riddled with deficiencies and unreliable evidence.
94. Negligence in and of itself must be proven in accordance with the charging provision. But the evidence again falls far short of proving this. Negligence in our view is a serious breach or allegation under s50(2)(d). The most severe penalty the Commissioner may impose if proven is dismissal from the service. So proof of the allegation must be to a high standard having regard to its serious nature, the likely penalty and impact on the Appellant as a member of the Service, including his employment and reputation.
95. So it is not enough for the Respondent to merely make the allegation there was some sort of negligence in the performance of the duty of a member. There must be an arguable prima facie case before a member is charged and thorough investigation would have assisted on the way forward in making a decision to charge. Given the state of the evidence elicited from Tuua’s investigation, there was an option here for the Commissioner to caution or reprimand the Appellant pursuant to regulation 33. This was not entertained, instead the crusade to pursue the disciplinary charges continued unabated.
96. Here, the crucial threshold question one must ask is what was the duty the Appellant neglected to perform and did it amount to misconduct? The Respondent says it was the failure to report and charge Olataga for unlawfully removing the cow or in other words not performing his duties. But let us back up a bit. The undisputed fact is there was a criminal investigation against Anitelea for theft and willful damage. At its conclusion there was a prima facie case and sufficient evidence to charge him. As part of that investigation based on statements from witnesses for the Complainant, Olataga and his team visited Anitelea’s property where they seized two cows identified by the complainant’s witnesses as belonging to Misa. The cows were removed it seemed without any objections from Anitelea’s wife who was present at the time.
97. But why were the cows removed in the first place? The simple answer is the cows were material evidence for the theft charge against Anitelea. We elicit this from the unrebutted testimony of the Appellant that there was a theft charge against Anitelea which was later withdrawn by Prosecution without his knowledge. On the understanding that Misa owned the cows, these were released to his possession. Later on Anitelea found out about this and started complaining that he owned the other cow. The legal ownership of the cow was therefore a live issue given Anitelea’s colour of right claim. In an effort to resolve Anitelea’s qualm in an amicable manner, the Appellant had suggested to him finding a lawyer to lodge proceedings in court to determine the legal ownership of the cow. Anitelea opted instead to continue pursuing his grievance with Police, perhaps due to a belief that it was them who seized the cow and they should return it.
98. But the matter is not as simple as one may believe. In the course of any criminal investigation relating to theft or dishonest offences, the collation of evidence to support a criminal charge is crucial. We accept that this is Police practice. So it was in that regard that the cows were seized and later relinquished to Misa given the identification by his witnesses of the cows belonging to him. Was the seizure of the cow unlawful as the Respondent contends? No it was not. Akin to this however, is another notable fact in that the actions of Olataga in seizing the cows were done in the course of execution of his duties as an investigating officer. This simply means, if there was any alleged wrong doing, Olataga is not the only one liable, but vicarious liability may also be attributed to MOP as employer.
99. But it does not end there. There was evidential basis to suggest there was a likely error or mistake of fact when the both cows were seized in that Anitelea had claimed that the other one belonged to him. It is plausible to say there was some substance in his claim given his active pursuit of his grievance from 2015 to 2017 culminating in these disciplinary proceedings. But this discovery occurred after the fact not prior; meaning after the cow was released to Misa. The Appellant was therefore correct in identifying that determining the true ownership of the cow was the first hurdle to overcome and the proper process to engage is for the Court to decide the issue. We refer here to s64 (1) of the Act which deals with seized property:
    • “64. Dealing with seized property – (1) Subject to subsection (2), when a sworn member of the Service has taken possession of any kind of property and it is doubtful:
    • (a) whether any person claiming the property; or
    • (b) which of any 2 or more persons claiming rights to it, –
    • is entitled to the possession of the property, a District Court Judge, on the application of any sworn member of the Service, or of a claimant to the property, may make an order for the delivery of the property to any person appearing to the Judge to be the owner of the property, or entitled to the possession of it.”
100. It is clear that this is the procedure that should have been followed in the present case given the colour of right claim. The process requires both Anitelea and Misa to appear to give evidence as to the ownership of the cow; but the District Court Judge can pass a decision in their absence, if they received reasonable notice but fail to turn up.[31] Anitelea obviously did not pursue this option but neither did a sworn Officer either. Instead other options for amicable settlement was explored.
101. We note, the first attempt at resolving this was by Soonalole. According to Anitelea he had approached Soonalole and he summoned Olataga where a meeting was held and Olataga was told to return the cow as by that time, the cow was already with Misa. Similarly, according to the evidence of Salale, when Anitelea approached him for assistance, he called in the Appellant and Olataga where he directed for Olataga to find the cow and return it. Questions from the Tribunal to Salale confirmed that it was him in his role as acting Commissioner who directed the Appellant to instruct Olataga to fetch the cow and return it. Perhaps if Olataga was called, this could have been put to him under cross examination, but he was not.
102. We agree with the Appellant that there was much weight in the evidence of Salale yet there was nothing in the ruling to indicate that the Tribunal gave any weight to it. Rather the reasons were silent as to issues of credibility, probative value and weight given to oral testimony called and if a specific witness was believed or disbelieved. The ruling omits any discussion about the critical aspect relating to the gravity of the Appellant’s breach. In fact, there is an entire absence of any analysis of the evidence of the witnesses including the defence.
103. It is also clear that an arrangement for settlement was reached but it did not come to fruition. In our view however, it was unreasonable and unfair in the circumstances to hold Olataga solely liable for recovery of the cow in light of discussions above. It is equally unfair to pass on responsibility to the Appellant. If there was in fact any unlawful act in seizing the cow and releasing it to Misa, then MOP is equally responsible. Given the process under s64 of the Act was not pursued, a collective administrative call from the MOP on how best to resolve this was crucial rather than singling out Olataga and the Appellant.
104. At the end of the day, the fact remains, neither Olataga nor the Appellant had anything to gain from all this. Neither of them sold the cow for profit nor did they keep it for their own personal benefit. The Appellant was sensible enough to suggest to Anitelea that the ownership of the cow was at stake and only the court has jurisdiction to deal with such questions as envisioned under s64. A civil claim could have been filed[32] as well with MOP as a party for vicariously liability given Olataga’s alleged impugned action was undertaken during the execution of his duties as a member of the Service and not one done on a frolic. We are aware however, that since these proceedings, MOP had already compensated Anitelea for the cow. Thus indicating MOP at the end, did take responsibility.
105. In regards to the Respondent’s argument that the Appellant’s counsel had not put to the witnesses contradictory evidence he sought to rely on, we do agree that there were aspects of the Appellant’s evidence that was not put to Anitelea. But this evidence has to be weighed against the totality of the evidence adduced. Salale’s evidence was it was him who directed the Appellant to instruct Olataga to return the cow. The rule in Brown v Dunn imports that, counsel is obliged to put to a witness matters of fact he/she has direct knowledge of.[33] This principle has been elevated to statutory recognition under s76 of our Evidence Act 2015. Mathieson, DL in Cross on Evidence[34] observed that:
     • “To comply with the rule, counsel must put to each of the opponent’s witnesses, in turn, so much of counsel’s own case as concerns that particular witness or in which that witness has had a share. But the particular circumstances of a trial, sometimes justify a relaxation the rule”
106. Here, Anitelea was not present at the meeting Salale called with Olataga and the Appellant, so he had no knowledge of the meeting or what was discussed. Tuua during his inquiries, did not see fit to inform the Appellant of his investigation. If he did he might have been able to obtain his version of events if he chose to and he might have learnt of the contents of Salale’s oral testimony. Counsel Mr Schuster did put this to Tuua during his cross examination that it was Salale who gave the directive which the Appellant actioned, but Tuua responded he did not know of such instructions.[35]

No Breach of Duty

107. We reiterate the important question at issue of what was the particular duty breached by the Appellant and if it was breached, did it amount to misconduct? Against the backdrop discussed above, we simply say it does not. Given our finding there was no breach of duty by the Appellant, it is therefore unnecessary to consider if there was misconduct as envisioned under s 50(2)(g). But even if we hold that there was a breach, it does not necessarily follow there was misconduct. For completion therefore and in deference to the interests of the parties, we will still briefly canvass the law on what amounts to misconduct to guide future proceedings of this nature.

Misconduct

108. The starting point for what is meant by the expression “misconduct” in a professional capacity is the statute itself. There is no definition in s2 of the Act. Section 50 (2) provides a range of disciplinary charges for breach of duty amounting to misconduct that may be brought against a member. For this case, the description of a duty amounting to misconduct at subsection (2)(d) is the Appellant’s negligence in the performance of his/her duties. We note from this enactment that the negligence is in relation to the member accused, as in the Appellant here, and not someone else. Apart from s50(2), there is nothing else in the statute, so we explore the common law on the relevant principles of law.
109. In the case of NZ Law Practitioner v A,[36] the NZ High Court there referred to its decision in Tan v ARCIC[37] where it adopted the test for misconduct in a professional capacity which was applied by the New South Wales Court of Appeal in Pillai v Messiter[38] (No2) (1989) 16 NSWLR 197:
     • “...Professional misconduct does not arise where there is mere professional incompetence nor deficiencies in the practice of the profession by a practitioner. More is required. Such misconduct includes deliberate departure from accepted standards or such serious negligence as although not deliberate would portray indifference and an abuse of the privileges which accompany registration as medical practitioner.
110. It is noted that Tan had also adopted from Corpus Juris Secundum[40] Vol 58 (1948) at p 818 the following test which was also applied by his Honour Kirby P in Pillai:
     • “Both in law and in ordinary speech, the term misconduct usually implies an act done willfully with a wrong intention and convey the idea of intentional wrongdoing. The term implies fault beyond the error of judgement: but it does not necessarily imply corruption or criminal intention and in the legal idea of misconduct an evil intention is not a necessary ingredient. The word is sufficiently comprehensive to include misfeasance and as applied to professional people it includes unprofessional acts even though such acts are not inherently wrongful. Whether a particular course of conduct will be regarded as misconduct is to be determined from the nature of the conduct and from its consequences”
111. Of the test, even if we find there was a breach of duty by not reporting or charging Olataga for removing the cow, there was nothing in this alleged failure that imports it was done willfully or wrongfully. Neither does it suggest a serious departure from accepted standards of the Service, or such serious negligence which although not deliberate, would portray indifference and an abuse of privilege. There is simply no plausible evidence (direct or circumstantial) before us to draw such an inference.
112. As identified above, the ruling gives no reasons of the critical element of the gravity of the Appellant’s breach. Given the lack of reasons, we can only presume that the Tribunal had proceeded on the basis that there was a breach and that it equated to misconduct. However, the Tribunal with all due respect, did not undertake any qualitative assessment of the Appellants conduct, and whether it was sufficiently reprehensible or indifferent, to amount to an abuse of his professional privileges, justifying a finding of serious misconduct, in the interest of protecting the public. In fact, the reasons are difficult to reconcile.
113. If anything, the conduct at stake might be deemed as deficiencies in the Appellant’s practice in not actively following up with Olataga the return of the cow. But we note, this formed the basis of the charge that was dismissed which the Respondent is not challenging, yet that allegation is linked to the proven charge under challenge. For the sake of argument, at the highest, the Appellant’s omission or conduct might be deemed as an error of judgment. However, this does not equate to misconduct. More is required. Here, a common sense approach seemed to have prevailed as evident in efforts to resolve this matter in an amicable manner. This is in line with our own customs and usages where efforts are exhaustively explored to mediate on settlement in a formal and informal setting. It is the same guiding principles adopted by the civil courts and Lands and Titles Court to alternative dispute resolutions.
114. In our respectful view, even if there was a breach, the Respondent failed to discharge the onus to establish to the requisite standard, that the course of conduct alleged, amounted to misconduct of the kind envisioned by s50(2)(d). But it does not end there. Our discussion in the next paragraphs is equally crucial to our final conclusion.

Second Issue: Were there adequate reasons to substantiate the ruling by the Tribunal?

Law on Duty to Give Reasons for a Decision

115. A nexus to the discussions immediately above, is the concern relating to the adequacy and relevance of the reasons on the ruling of guilt. The Respondent conceded that the reasons in 2 of the ruling was irrelevant and for 3, there was no evidence at the hearing to substantiate the finding. They otherwise argue that those in 1 and 4 do relate to the charge. We agree with the Appellant. We are satisfied that the reasons given by the Tribunal to support its finding of breach and therefore misconduct cannot be sustained on the evidence. The ruling itself, in particular the lack of assessment of the evidence and conclusion reached, is very superficial.
116. Lest we forget that it is a settled principle of law, that a Tribunal or any court of law have a duty to provide adequate reasons to substantiate its finding.[42] The leading authority in Samoa on disciplinary proceedings where the duty to give reasons was discussed is Ponifasio.[43] Chief Justice Sapolu in that case observed that the duty to give reasons may be seen simply as yet another aspect of the requirements for procedural fairness. Referring to Judicial Review of Administrative Action, [44] he observed with approval that:
     • “...The duty to give reasons may now be seen simply as yet another aspect of the requirements of procedural fairness’. However, the authorities are clear that there is no general duty to give reasons imposed on statutory tribunals for their decisions, for example, in R v Awatere [1982] NZCA 91; [1982] 1 NZLR 644, Woodhouse P, in delivering the judgment of the New Zealand Court of Appeal, said at p.647:
       • “For the reasons given in this judgment we are unable, with respect, to accept the view that there is any general rule of law which requires reasons to be given, nor the conclusion reached in this case that a decision given in the absence of reasons would have to be regarded as a nullity. Later in the judgment we refer to the discretionary right in the Court to quash a decision should that be necessary in order to avoid injustice”.
     • (m) Circumstances where procedural fairness or natural justice may require the giving of reasons for a statutory tribunal’s decision
     • “It is not necessary to give an extensive account of the circumstances where procedural fairness, or natural justice, may require the giving of reasons for a statutory tribunal’s decision. Such an account may be found in Judicial Review of Administrative Action (1995) 5th ed by de Smith, Woolf and Jowell at para 9-047, pp.462 – 465. For present purposes, it would be sufficient to refer to the circumstances which are relevant to the present case. In Judicial Review of Administrative Action (supra) at para 9-047 (2), pp 462 – 463 the learned authors state:
       • “Where statute or regulation provides a right of appeal from a decision, reasons may be required so as to enable the affected individual to exercise effectively that right. A right to reasons in these circumstances may be explained either by reference to the rules of natural justice or, more usually, by a necessary implication from the rules which provide for the appeal”.
     • In Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph, the learned author pointed out at para 23.4.10, pp. 871-872:
       • “A refusal to provide reasons may invite the inference that a decision lacked foundation and was arbitrary: New Zealand Fishing Industry Association Inc v Minster of Agriculture and Fisheries [1988] 1 NZLR 544, 554, that mandatory relevant considerations were ignored, or that improper considerations materially influenced the outcome, for example, Padfield v Minister of Agriculture, Fisheries and Food [1969] AC 997, 1061-1062; Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341, 345-346. The rubric appears to be ‘fairness in the circumstances of the particular case’: Gurusingbe v Medical Council of New Zealand [1989] 1 NZLR 138, 163, per Davison CJ”.
117. Sapolu CJ, observed that it appears from the authorities cited that if a statute provides for a right to appeal from a decision of a Tribunal, then procedural fairness requires the Tribunal to give reasons for its decision so that the right of appeal can be effectively pursued. But not giving reasons for its decision may frustrate the right of appeal and may also, lead to an inference that, there are no good reasons for the decision, or that the reasons are bad. We agree with his Honour’s observations.
118. Our Court of Appeal in Attorney General v Sefo[45] also made similar observations regarding the importance of a judge giving reasons in the context of an application of s100 Criminal Procedure Act 1972 where their Honours stated:
     • “The reasons for decision under s100...must identify and deal with the essential issues and contentions in the case. That is for several overlapping reasons.
     • First is the discipline the requirement places on the judge to ensure that the process of reasoning covers all necessary bases and does so convincingly. Secondly and vitally, the parties and especially the losing party, are entitled to know how their contentions have been dealt with and why the decision is as it is. Thirdly, the assessors are entitled to know why the judge has disagreed with them. Fourthly, not only are the parties entitled to reasons to determine whether to appeal but without reasons the appellate court cannot properly perform its functions. Finally, confidence in the rule of law depends upon the judges acting transparently. Reasons are an essential element of the same open justice that requires public access to the court room.”
119. We are of the respectful view that these principles of law also equally apply to disciplinary proceedings which we adopt without reservation. Applying these principles to the present case, the statutory scheme of the Act, does provide at s53 for the right of appeal of a member to the Appeal Board. So by implication, this means that it is prudent that reasons be given to enable the Appellant to exercise effectively his right of appeal. This is linked to procedural fairness and rules of natural justice. As proclaimed by Davidson CJ, in Potter v NZ Milk Board[46] it is the public responsibility of both Courts and administrative authorities to provide reasons:
     • “The giving of reasons helps to concentrate the mind of the tribunal upon the issues for determination: it enables litigants to see that their cases have been carefully considered and the arguments understood and appreciated; it enables a litigant dissatisfied with a decision to more readily consider whether there are grounds of appeal; and it enables an appellate Court or tribunal to ascertain the determinations of the tribunal on questions of fact, to which appellate Courts pay deference on the hearing of an appeal and [it] also enables the appellate Court... to know what principles of law have been applied and to consider whether such were correct”

Unpacking the Reasons

120. For this case, there are reasons provided however, the question is, do these substantiate the proven charge and are they adequate? We answer this with a simple no. The reasons the Tribunal relied upon to substantiates its conclusions are invalid, irrelevant and inadequate. We reiterate, the ruling itself did not encompass an extensive or comprehensive analysis of the evidence and circumstances that were relevantly germane to it as we have done here. It was difficult for us to marry the relevance of the reasons to the proven charge.
121. With all due respect to the Tribunal, it appears to us that they only took a scant consideration of the evidence before them. In fact, the message that comes through is, they were confused. It also seems the decision was passed in haste; perhaps due to the prolonged lapse of time in concluding the proceedings. We empathise with the Tribunal, as the hearing before them had dragged on for a while. From the time the Appellant was served on 4/09/17 to the first mention on 4/12/17 and final conclusion of submissions on 12/02/19, it is a total of 17 months. This is a lengthy delay indeed. So understandably, they were eager to pass their ruling which they did the very next day (13/02/19) after hearing submissions. This delay in our view goes to the constitutional rights of the Appellant to a fair trial, to be heard before an impartial Tribunal within a reasonable time under Article 9(1) of the Constitution.
122. Unfortunately, this is the inevitable adverse impact of protracted trial proceedings especially if significantly adjourned part-heard as opposed to one heard continuously until completed. As said numerous times, the Tribunal panel and similarly judges, are humans and likely to err. Our Court of Appeal in National Pacific Insurance Ltd v Vaivaimuli Corporation Limited,[47] had referred to the Privy Council case of Boodhoo v Attorney General of Trinidad and Tobago,[48] which involved an issue of whether a delay at the appellate level had infringed the Appellant’s constitutional right to the protection of the law. The Court of Appeal acknowledged that although it was not relevant to the case before them, the case should be noted for the following salutary remark by Lord Carswell which in our view generally applies here too:[49]
     • “The law's delays have been the subject of complaint from litigants for many centuries, and it behoves all courts to make proper efforts to ensure that the quality of justice is not adversely affected by delay in dealing with the cases which are brought before them, whether in bringing them on for hearing or in issuing decisions when they have been heard.”

Inadequate and Irrelevant Reasons

123. For the present case, despite the argument by the Respondent on the reasoning in (1) we are not persuaded for the simple reason that it did not form any material particulars of the charge proven. The charge was not about the failure by the Appellant to provide quality checks of files before they were forwarded to the NPO. The Respondent had clarified a number of times, the misconduct was in relation to the Appellant’s failure to report Olataga when he was the OIC at PSU, and this has nothing at all to do with the reasoning in (1).
124. In regards to the remaining reason in (4), again it is of no relevance to the proven charge. The Tribunal’s reference there to the Ministry’s Statement of Purpose, Code of Conduct and Principles of employment, to justify the conclusion that the Appellant failed to uphold the highest standard of personal integrity, was simply irrelevant to the charge and made without any evidential basis. The charge did not particularise any breaches in accordance with these principles. The Appellant was never questioned on this and how it might be linked to the charge. Nor was there any hint during submissions that it might be a material influential factor that the Tribunal would consider. We rule that there was a breach of the rules of natural justice in including this reasoning which never formed any ingredient of the charge, nor was the Appellant questioned on so be may have the opportunity to answer. The reference to “personal integrity” is wrong as it is the professional integrity of the Appellant that is at question not his personal integrity.

Reasons for Findings of the Tribunal were Grossly Wrong & Error of Law

125. Accordingly, we are satisfied that the reasons given by the Tribunal for its finding that the Appellant breach his duties amounting to misconduct are grossly wrong and is and of itself, an error of law. Although this is a rehearing, we have recorded above our own conclusion based on the merits of the case and evidence that was before the Tribunal. We again reiterate here our conclusion that the Respondent failed dismally to discharge its duty of proving the charge on the standard of probabilities. Given this finding it would naturally follow that the penalty imposed by the Commissioner should be quashed. However, given the importance of the issue raised on appeal, on the penalty imposed, we will still address this ground of appeal for completion and to provide a general guide for future reference.

Appeal Against Penalty

Third Issue: Was there procedural fairness when the Commissioner imposed the penalty and was there a breach of the rules of natural justice and Article 9 of the Constitution?

Grounds of Appeal

126. Although the Appellant advanced a number of grounds for appealing the penalty, these overlap and can be summarized as:
     • (a) That there was a breach of his constitutional right to a fair trial when he was not given the opportunity to be heard on the penalty; and
     • (b) That his dismissal from service was unjustified.

Statutory Function of Tribunal and Commissioner

127. It is timely at this juncture to refer to the scheme of the Act and apposite governing regulations. Under the Act, it is not the function of the Tribunal to impose a penalty upon a member such as the Appellant after a charge is proven. The imposition of a penalty, is the function of the Commissioner.[50] This is similar to the legislative framework of the New Zealand Police Act 1958 and their operative Police Regulations 1992. A brief comparative analysis of the two jurisdictions is addressed in the next paragraph.
128. Like the NZ regime, the scheme of our Police Service Act requires the Tribunal determines whether the charge brought before it in a disciplinary sitting affecting a member or officer of the Service is proven to the requisite standard of on a balance of probabilities. However, where it differs is under the NZ scheme, the Tribunal may also invite submissions on penalty from all sides, to assist form a penalty recommendation to the Commissioner.[51] For NZ, at the end of the inquiry, the Tribunal is required to forward all relevant submissions on penalty and replies to the Commissioner.[52] This is the same as our legislative scheme in so far as submitting the report or findings of the Tribunal to the Commissioner.[53] However, the making of penalty submissions by the parties before the Tribunal is a distinguishing factor as it is not explicitly expressed in our Act and governing Regulations.

Tribunal’s Recommendation on Penalty

129. The Tribunal in accordance with its function in s51A(2) (b) of the Act, recommended a penalty of a reduction of rank or pay or both pursuant to s51(B)(1)(d). However, despite this recommendation the Commissioner disregarded it, instead he imposed a dismissal penalty under s51B(1)(f). According to the Commissioner’s affidavit at [9], he deposed that “pursuant to section 51(B)(2) of the Police Service Act 2009, I was not bound by any recommendation of a Tribunal.” The Commissioner is correct in that regard given the scheme of the Act. But that is as far as it goes. We will return to this point soon.
130. In analyzing the ranking of penalties in 51B, it is obvious, that a dismissal from the Service is the most severe. We venture to say this penalty is reserved for the most serious incidents of professional misconduct. But was the breach here serious enough to justify a dismissal? No it was not. But obviously, the Tribunal thought otherwise given their penalty recommendation. For our part, to assess whether the penalty was justified, it is crucial to consider the procedural process adopted by the Commissioner on the day he imposed the penalty.

Procedure before the Commissioner

131. As described above in [23] to [25], the Appellant was summoned by the Commissioner where he was informed of his dismissal from the Service; this much is clear from the affidavits tendered by consent. The Commissioner had deposed at [7] in his Affidavit that the Appellant was noticeably unhappy. He also voiced his objection and rejection of both decisions and that he would file an appeal. At [8], the Commissioner deposed that the Appellant was also offered the alternative option of resigning and he would be able to collect all his benefits but he rejected this option.
132. We alluded to above, we accept that at the time the penalty was dished out, the Appellant was not given an opportunity to be heard on neither an appropriate sentence nor factors in mitigation. Unsurprisingly, this omission was at the heart of the Appellant’s appeal and submissions against penalty.

Submissions

133. The Respondent in oral submissions argued it was not necessary for the procedure described to be applied at the penalty stage as the hearing before the Tribunal had concluded and the penalty process was not a hearing to attract Article 9(1). When queried about the principles in the Ponifasio case, the Respondent submitted the two cases were distinguished. With due respect, the position taken by the Respondent on this crucial issue is dangerous, and for the reasons discussed below, we cannot accept it, as it goes against every principle of justice tantamounting, to a miscarriage of justice and an abuse of process.

Statutory Procedural Provisions on Penalty in the Act and Regulations

134. The legislative scheme on the procedure to follow before the Commissioner imposes a penalty on a member found guilty of a charge is crystal clear. Section 51B(5) states that:
     • “(5) If the Commissioner decides to terminate a charged member pursuant to subsection (1)(f) for a matter referred under section 51(4), the Commissioner must ensure the charged member is given the right to respond to the decision to terminate him or her from the Service before he or she is terminated.”
135. Subsection (5) was inserted via the Police Services Amendment (No.2), No.25 which commenced on 21 December 2017. The reference in this enactment to subsection (1)(f) is in regards to the penalty of a dismissal and s51(4) deals with matters referred to the Commissioner to either impose a penalty under subsection (1), or for referral for convening the Tribunal under subsection (2). It is important to note that, penalties imposed without a hearing under s51(4)(a) is subject to subsection (5); that is before the Commissioner imposes a termination penalty, the member must be given an opportunity to be heard before he or she is terminated.
136. The same principle is echoed in regulation 37 of the Regulations which provides:
     • “37. Member must be allowed to make representation in mitigation - A member who pleads guilty, or who is found guilty of a charge shall be given an opportunity to make a plea by way of explanation and mitigation”
137. Both of these enactments are mandatory and not discretionary as evident in the use of the terms “must” and “shall.” It applies in the present case. The scheme of these enactments could not be any clearer. It is a must that the Commissioner observes this. This is the procedure he must follow. He cannot pick and choose whether to activate it depending on the member appearing before him or for whatever reason.

Article 9 (1) of the Constitution, Right to be Heard and Principles of Natural Justice

138. Coupled with these enactments is Article 9(1) of the Constitution which is the supreme law of the land, requiring that a person charged before a Tribunal have the right to be heard. A corollary to this are the established rules of natural justice; which are key principles pertinent to ensuring there is procedural fairness in decision making.
139. It is well established in our jurisdiction that Article 9 (1) of the Constitution applies to professional disciplinary proceedings of this nature including the penalty process after a Tribunal hearing. This was confirmed by our Court of Appeal in Matatumua v Medical Council[54], and reaffirmed by his Honour Sapolu CJ, in Ponifasio. As Lord Cooke of Thorndon delivering the judgment of the Court in Matamua observed:
     • “It is true that the European Court has in the past taken the view that some purely public or administrative law issues between an individual and a state institution are outside the scope of civil rights and obligations; but professional disciplinary proceedings have been held in a number of cases to fall within Article 6(1): Konig v Germany [1978] ECHR 6; (1980) 2 EHRR 170 (medical practitioner’s authorisations to practise and run a clinic); Le Compte v Belgium [1981] ECHR 3; (1981) 4 EHRR 1; (1982) 5 EHRR 183 (suspension of right to practise medicine); H v Belgium [1987] ECHR 30; (1987) 10 EHRR 339 (non-restoration to roll of advocates); Kraska v Switzerland [1993] ECHR 17; (1993) 18 EHRR 188 (employed doctor’s treatment of patient without authorisation – a case raising issues similar to those in the present case); G.S. v Austria (1999) Application No. 26297/95 (licence to run a pharmacy). There is certainly no ground for adopting any narrower approach in Samoa”.
140. We refer here again to the case of Ponifasio where his Honour Sapolu CJ, comprehensively canvassed the relevant principles of natural justice from a long line of jurisprudence developed over the years. To enlighten all concerned and for the benefit of members of the Service including the Commissioner and those in senior rankings, we have cited the relevant passages in verbatim from his Honour’s decision:[55]
     • “Natural justice consists of two fundamental principles. The first principle is that no man should be condemned without being given notice and the opportunity to the heard. This is embodied in the maxim audi alteram partem. The second principle is that no man should be a judge in his own cause. This is embodied in the maxim nemo judex in causa sua. The first principle is sometimes referred to as the fair hearing rule and the second principle is sometimes referred to as the rule against bias.
     • In Judicial Review of Administrative Action (1995) 5th ed by de Smith, Woolf and Jowell, the learned authors state at para 7-008, p.379:
       • “[Natural justice] became identified with the two constituents of a fair hearing; (a) that the parties should be given a proper opportunity to be heard and should be given due notice of the hearing (audi alteram partem) and (b) that a person adjudicating would be disinterested and unbiased (nemo judex in causa sua).
     • In Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph, the learned author states at para 23.1, p.848:
       • “There are two pervasive principles of natural justice: that the parties be given adequate notice and opportunity to be heard (audi alteram partem) and that the decision-maker be disinterested and unbiased (no man a judge in his own cause – nemo judex in causa sua).
     • In the land mark case (emphasis added) of Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 ...Lord Hodson stated at p.132.
       • “No one, I think, disputes that three features of natural justice stand out – (1) the right to be heard by an unbiased tribunal; (2) the right to have notice of charges of misconduct; (3) the right to be heard in answer to those charges”
141. His Honour also referred to Russell v Duke of Norfolk [1949] 1 A11ER 109, 118, Tucker LJ, in the often referenced passage below which is also a timely reminder to us all:^[56]
     • “There are in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case”.
142. Furthermore, reference was also made to the following passage from Judicial Review of Administrative Action at para 1-029, pp 16-17:
     • “...In a long line of cases on demolition orders, beginning with Cooper v Wandsworth Board of Works [1863] EngR 424; (1863) 14 CB (NS) 180, the rule, said to be of ‘universal application and founded on the plainest principles of justice’, was laid down that public authorities must either give the person concerned ‘notice that they intend to take this matter into their consideration with a view to coming to a decision, or, if they have come to a decision, that they propose to act upon it, and give him an opportunity of showing cause why such steps should not be taken”.

143. On the connection between procedural fairness and natural justice Chief Justice Sapolu observed that “it is generally accepted that there is an inter-connection between the concept of procedural fairness and the concept of natural justice so that the two concepts are often treated as synonymous.”[57]

Discussion

144. Having canvassed the legislative scheme and legal principles above, it is trite law to say that the procedure adopted by the Commissioner in passing penalty here was procedurally wrong and done in clear contravention of sections 51B (5) of the Act and regulation 37. Not only that but the procedure was also substantially flawed and amounted to a gross breach of the constitutional rights of the Appellant to a fair hearing and rules of natural justice.
145. In the present case, it was the demanding duty and responsibility of the Commissioner to decide as a reasonable and fair employer, whether the disciplinary charge proven before the Tribunal, comprised serious misconduct by the Appellant, justifying a dismissal in the particular circumstances of the case before him. After all, it goes without saying that a dismissal has grave adverse repercussions on the Appellant’s reputation, career and his family.
146. The Commissioner’s affidavit canvasses in detail the factors he considered as relevant to the penalty he imposed as set out above in paragraph 3 which included inter alia:
     • (a) Finding of guilt;
     • (b) History of disciplinary complaints & allegations of misconduct;
     • (c) History of incompetence and negligence in the performance of his duties;
     • (d) Lack of respect and trust in the Appellant by other members;
     • (e) Failure to instill confidence and leadership skills befitting a commissioned officer; and
     • (f) Diminishing respect and confidence in the Service by the community due to the Appellant’s unprofessional reputation.
147. Interestingly, there was no reference to mitigating factors that he might have taken into account as required under Regulation 37 and rules of natural justice. Unpacking the reasons above, b) and c) are at the top tier of severity of the threshold of aggravating factors, followed closely by (e) (f) then (d). These are in fact very serious and grave considerations that the Commissioner took into account. But what information did he have before him to substantiate the conclusions in d) and (f)? The Appellant says he does not know. Obviously, a fair decision maker would consider these aspects from objective lenses as opposed to subjective. These matters after all goes to the professional integrity and character of the Appellant and cannot be made in a vacuum void of evidential foundation (for example, written character testimonials or references). For (a) obviously, the Commissioner had the ruling of the Tribunal and investigation evidence.[58] But as we discussed above, those reasons are inadequate and do not substantiate the charge.
148. For the more serious factors in (b) and (c), a plausible inference drawn from the Commissioner’s affidavit is that the Appellant had a somewhat troublesome career up to the date of the penalty and that he seemed to have a predilection towards this type of conduct. It further infers that the Commissioner, was no longer prepared to expose the reputation of the service to more risks of similar incidents which he attributed to the Appellant. These considerations go to the core of the professional history and work performance of the Appellant. These are severe and hefty indeed. In the interest of fairness and natural justice, these factors should have been put to the Appellant, so he may answer accordingly and provide rebuttal evidence, if necessary.
149. The problem however as discussed above is, the Appellant was never given the opportunity to reply to crucial factors the Commissioner deemed material for penalty. In fact, we accept the version of the Appellant as conceded by Ms. Atoa that the first time he learnt of the reasons for his dismissal was when he received the Commissioner’s affidavit. In other words, these factors were not made known to the Appellant during the penalty process. He only found out about these detailed factors in March 2021 prior to the hearing of this appeal before us. This is simply unacceptable and unfair on the Appellant.
150. Whether or not it would make a difference to the ultimate outcome of the penalty if an opportunity was given to the Appellant, is not the issue. The fact is, he was not given that opportunity, notwithstanding the explicit and expressed provisions under s51B (5) of the Act and Regulation 37 relating to the procedure to follow. The procedure under these enactments mandatorily require the Commissioner to allow the Appellant to be heard on penalty and more specifically, to respond to a decision to terminate.
151. We note as well that at all material times during the penalty delivery, the Commissioner was well aware that the Appellant was represented by counsel and as a matter of courtesy, at the very least, Mr Schuster should have been informed of the date the penalty would be imposed and of his intention to terminate the Appellant. In the normal course of things where a person is represented by a lawyer, unless otherwise advised, the lawyer remains on the record as counsel. We are baffled as to why Mr Schuster was not informed. Yet he is within reach via any mode of communication including a stroll to his office which is located around the corner at Tamaligi, in close vicinity to the main headquarters where the penalty was passed down.
152. It would be absolutely wrong to think that the penalty proceedings can proceed without due regard to the interests of the Appellant, including the scheme of the Act, constitutional protection and rules of natural justice. The penalty proceeding still forms a pivotal part of the disciplinary proceedings. It is the final process or grand finale so to speak to finalizing disciplinary proceedings that were before the Tribunal. So contrary to the argument by the Respondent, the rules of natural justice and the right to a fair trial of the Appellant must be observed at this final stage. It is trite law to say that these were the very factors Parliament considered as critical in the enactment of s51B (5) and regulation 37; that is to ensure the right to be heard and rules of natural justice are observed at the final stage when the penalty is imposed. It was also enacted to ensure that the powers of the Commissioner to impose penalty including a termination of a member, is not subject to abuse and that rulings are not arbitrarily made, but guided by principles of fairness and justice.
153. We also note, that no submissions for an appropriate penalty were made before the Tribunal; perhaps because our legislative scheme is silent as to this requirement compared to NZ’s regime. However, it can be implied, that the fact that the Tribunal is required to make recommendations as to penalty, also imputes that an opportunity to make submissions on penalty should be offered to both parties so they may be heard on this issue. For the avoidance of doubt however, it would be conducive to justice for this to be explicitly covered in the Act and/ or Regulations.
154. So overall, in our respectful view, the compounded instances of procedural impropriety and unfairness in this proceedings exacerbated the other. It flowed from the investigation where the Appellant was not informed of it nor invited by Tuua to provide a statement, right through to the final stage, when the Commissioner discharged his statutory duty to dish out the penalty. The fact s51B (5) specifically targets a penalty of termination means this is a safeguard for the protection of the member and public interest in the fair application of the powers of the Commissioner, including consistency in the procedural approach to adopt It does not mean that the response has to be submitted on the day of the penalty. The provision in our opinion, if generously interpreted, is broad enough to imply that proceedings may be adjourned, for the response to be prepared and submitted. But it is for the Commissioner to set the timetable for this to be done and to regulate the process.

Was the penalty justified?

155. Was the penalty justified? No it was grossly unjustified. In our considered view, even if we find that the charge was proven, there was no substantive reasons of sufficient seriousness when all the relevant circumstances of the case are assessed, to justify the penalty which was excessive and inappropriate. Rather a conscientious and objective consideration of all circumstances and factors of his case would lead compellingly to the conclusion that the appropriate penalty, is a caution or warning.
156. For guidance on conduct that would justify summary dismissal we refer all concerned to the case of Oil Nz Ltd v Northern Distribution Workers Union[59] where it was there stated that:
     • “Definition is not possible for it is always a matter of degree. Usually what is needed is conduct that deeply impairs and is destructive of the basic confidence or trust that is an essential of the employment relationship. In the context of personal grievance, claim under the Labour Relations Act, questions of procedural and substantive fairness are also relevant. If at the end, the question essentially whether the decision to dismiss was one which a reasonable and fair employer would have taken in the particular circumstances”
157. The present case was not about a breach of trust, or dishonesty offending or a charge arising out of a criminal charge of a serious nature. It was, in our assessment a minor incident which would have had little impact on the reputation of the service. The penalty was far too harsh, excessive and unjustified in the circumstances.

Other Issues and some Observations and Recommendations

Unconstitutionality

158. The Appellant in his submission had raised the issue of the unconstitutionality of s51B of the Act, in that it does not provide a mechanism or procedural process granting the Appellant a fair hearing before a Commissioner passes sentence. This issue has been extensively covered above in our discussion for subsection (5) of section 51(B) and regulation 37; a provision which commenced on 21 December 2017. We need not address this again suffice to say there is a statutory procedure which was already in place at the time the penalty was imposed. However, that procedure was not complied with. In any event as Mr Schuster quite properly conceded, it is the Supreme Court which deals with striking our provisions of an Act, if it is rendered unconstitutional.

Delay in the Timely Disposition of Disciplinary Proceedings

159. We are here very concerned with the lengthy delay in resolving this matter yet it was a simple issue. The timely disposition and expedition of cases of this nature is critical. For the present case, as outlined in the Procedural History section of this Ruling, PSU investigation was concluded in July 2017 and Tuua tendered his report for consideration. Charges were formulated and served on the Appellant on 4/09/17. But it was not until 4/12/17 that the Tribunal first called the matter. From that date it was further adjourned for another three months for hearing to commence on 14/03/18. Then it was significantly adjourned part-heard to 27/06/18 for continuation of hearing. The next recorded sitting of the Tribunal was on 12/02/19 to hear closing submissions. The lengthy adjournments for part hearing this matter which spanned over a period of 14 months, in our view is unreasonable. We urge that a disciplinary proceeding should proceed continuously until finalised as opposed to a part-hearing with lengthy adjournments.
160. In our respectful view, it will benefit the Service for time limits to be put in place under the Regulations for the timely disposition of disciplinary proceedings. We say this bearing in mind the maxim of justice delayed is justice delayed. A member charged with a breach under either the Act or Regulations have a legitimate expectation that the case against him or her, will be expedited and finalized within a reasonable time. This is a constitutional right of every litigant under Article 9(1) of the Constitution.

Delay in Empaneling the Appeal Board

161. We are also obliged to comment on the delay in empaneling the Tribunal. The Appeal was lodged on time. By filing the appeal, this then triggers the empaneling of the Appeal Board. However, it was not until Mr Schuster requested the empaneling of the Tribunal that there was some movement. Due to administrational issues and reasons described in the Procedural History section of this Ruling, the composition of the Appeal Board was not finalized until March 2021. In our view, there was an unreasonable delay in composing the Appeal Board. Again we recommend that a set time frame be included in the Act or Regulations to regulate the timely composition of the Appeal Board so that an appeal could be heard and finalised without undue delay.

Procedural Fairness during Investigation of a Member for breach

162. We note from the evidence of Tuua, that due process as required under regulation 34 was not observed in regards to informing the Appellant as soon as practicable of the nature of the report intended to be made against the Appellant. According to the Appellant’s evidence, he was unaware there was an investigation against him. He was also not given a copy of the report of the investigation forming the disciplinary charges against him.
163. Rules and regulation regulating a profession and procedural process are there for a reason and must be complied at all times. There was no valid explanation at all from Tuua as to why this was not done. Nor is there an explanation as to why he did not see proper, to inform the Appellant to ascertain from him, if he wished to submit a statement in response to the inquiries. We urge such omission should be discouraged and deterred. A member has a right to be informed of proceedings against him or her and to be afforded the protection of the law.

Importance of Judicial Function of Tribunal

164. A Tribunal sitting on a disciplinary hearing must bear in mind the importance of the judicial functions they discharge and public interest in ensuring justice is seen to be done. They must also ensure that rules of natural justice are observed at all times. In delivering its report or ruling, it must include a comprehensive and extensive consideration of the evidence and all relevant factors and reasoning they took into account in coming to a conclusion. It is not enough to simply reduce this to 4 sentences. More is required, given there is an appeal procedure and it is important that the Appellant or a member is sufficiently informed, of the reasons for a ruling.

Procedural Fairness at the Penalty Stage

165. The Commissioner or anyone acting under his delegated powers, must follow the procedure under the Act and Regulations when entertaining termination or any other penalty against a member. Moreover, he/she must do so with fairness having regard to the interests of the member and right to be heard. This would avoid exposing the MOP to protracted appeals of this nature as it is not at all, in the public interest, or interest of the member or Service given it is a time consuming and costly exercise.

Composition of the Tribunal

166. We observe that crucial legal issues were raised during the Tribunal hearing. It would have been of benefit for a senior lawyer to sit on the panel. We recommend the MOP considers a review of the Act to include a senior lawyer on the Tribunal panel.

Seizure by Police of Property

167. This case involved the seizure of property or cow where there was a claim of colour of right. This whole saga could have been less dramatic and resolved expeditiously by using the procedure relating to such claim of right for seized property under s64(2) of the Act. We would encourage the Commissioner and all members of the Service to study the Act and Regulations to avoid a recurrence of unfortunate incidents of this nature.

Policy and Law Reform

168. We appreciate and acknowledge it is not our role to make policy changes to the current governing Act and Regulations; that is quite properly the role of Parliament. However, we can only suggest that if there is to be reform or review of the two pieces of legislation, then it would be productive for MOP to consider the comprehensive provisions of the NZ Regulations. This include, a consideration for a requirement that submissions for an appropriate penalty must be placed before the Tribunal for them to make an informed recommendation to the Commissioner on the penalty.
169. Overall, this case should serve as an eye opener and learning curve for the MOP going forward.

Acknowledgement

170. Before we conclude, we thank all counsel for their submissions and assistance in answering our queries. We acknowledge this matter has taken a toll on everyone especially the Appellant and we hope this will bring some closure and finality to him and his family.

Conclusion

171. Having canvassed our reasons above and pursuant to s54(3) of the Act, we make the following orders:
     1. We allow the appeal.
     2. The Tribunal ruling finding the Appellant guilty of the charge is quashed.
     3. Given the order in (2) quashing the finding of guilt, the dismissal penalty imposed by the Commissioner is similarly quashed.
     4. The Appellant has been on suspension, since 4 September 2017. Given our ruling now pronounced we further order that:
        1. The Appellant be reinstated forthwith to his rank with the Service prior to his suspension; and
        2. He is to be compensated for his salary and all entitlements due to him during the period of his suspension.
     5. Both sides to file memorandum as to costs within 7 days.
        

DCJ ALALATOA ROSELLA VIANE PAPALII
(Chairperson)

ACTING ASSISTANT COMMISSIONER MISATAUVEVE TOFAEONO
(Member)

INSPECTOR SALA SOLOMONA NATIA
(Member)

Postscript

Since the delivery of our oral ruling, we have received a memorandum as to costs from the Appellant. We had referred the costs application to the parties to mediate on. This was successful.

The Ruling as to Costs have already been handed down in accordance with the agreement between the parties.

^[1] Briginshaw v Briginshaw (1930) 60 CLR 336
^[2] Alii & Faipule of Laulii v Estate of Jacob Helg [2011] WSSC 48
^[3] Tuala Auimatagi Iosefo Ponifasio v Council of Samoa Law Society [2013] WSSC 11
^[4] Above note 1 at 362
^[5] Per the majority in the Court of Appeal decision of Z v Dental Complaints Assessment Committee [2008] NZSC 55; [2009] 1 NZLR 1 at [128]
^[6] Refer to ibid for a comprehensive coverage of the law and case authorities. But also see Re Medical Practitioner [1959] NZLR 784; Ongley v Medical Council of New Zealand [1984] NZHC 102; (1984) 4 NZAR 369; Complaints Committee No 1 of Auckland District Court Law Society v C [2008] NZHC 2284; [2008] 3 NZLR 105; NZ Police Association Incorporated v Commissioner of Police [1997]...
^[7] See Forbes, Justice in Tribunals (2^nd Edition) paras [12.21] –[12.23] where this is discussed in detail and reference to adopting the test in Briginshaw
^[8] See Stetler v Ontario Flue-cured Tobacco Growers Marketing Board (2005) 76 OR 93d) 321 (OCA)
^[9] See Solicitor v The Law Society of Hong Kong [2008] HKCFA 15; [2008] 2 HKLRD 576 per Boghary PJ (HKCFA)
^[10] Above note 5 at [111]
^[11] Ibid at [97]
^[12] Above note 3. This matter commenced with Tribunal proceedings in 2010. There were various challenges by Ponifasio as Practitioner and an appeal by the Law Society as well. However, none of these challenges concerned the application of the civil standard as it was accepted by all that it is the correct standard of proof to apply. After the challenges were resolved, this matter was finally settled successfully in 2016. On the agreement of the parties, the Tribunal did not impose any further penalty.
^[13] Above note 5.
^[14] Re Dellow’s Will Trusts Lloyds Bank Ltd v Institute of Cancer Research [1964] 1 WLR 451, where an allegation of felonious killing was held proved on the balance of probabilities.

^[15] See Dixon J in Briginshaw, at pp 360 – 361 where he notes that both Wigmore on Evidence (2nd ed, 1923) and Starkie’s Law of Evidence (1st ed, 1824 and 4th ed, 1853) supported flexibility in the framing and application of the civil requirement.
^[16] Above note 6 at [102]
^[17] Above note 1
^[18] See Complaints Committee No 1 of the Auckland District Law Society v C [2008] NZHC 2284; [2008] 3 NZLR 105 at [121]
^[19] Meredith v Ainuu [2006] WSSC 55

^[20] See Rule 16 Supreme Court Civil Procedure Rules 1980 and r8 Magistrate Rules 1970
^[21] See Judge Viane Papalii’s analysis of this aspect in P v Ludwig [2018] WSDC 16
^[22] Ibid
^[23] At page 7
^[24] At [23]
^[25] At 41 of Appeal Transcript

^[26] At [23] of Appeal Submissions

^[27] Browne v Dunn (1893) 6 R 67 at 70, 76
^[28] Above note 5 at [115]
^[29] Esera v National University of Samoa [2003] WSSC 12
^[30] Miller Ltd v Minister of Housing and Local Government [1968] 2 A11 ER 633 at 634,

^[31] See subsection (4)
^[32] See s64(8)
^[33] Above note 27
^[34] Matheson, D L Cross on Evidence (7^th Edition, 2001) at 270
^[35] See pages 34 and 35 of Tribunal Transcript
^[36] Judgment delivered on 19/12/01
^[37] Tan v ARCIC [1999] NZAL 369 at 375 -376
^[38] Pillai v Messiter³⁹ (No2) (1989) 16 NSWLR 197
^[40] Corpus Juris Secundum⁴¹ Vol 58 (1948) at p 818
^[42] Above note 3 at [50] –[53]
^[43] Ibid
^[44] De Smith, Woolf, Jowell Judicial Review of Administrative Action (1995) 5^th ed at [9-048], of 465
^[45] Attorney General v Sefo [2009] WSCA 7 at [13] to [16]
^[46] Potter v NZ Milk Board [1983] NZLR 620, 624

1. ^[47] National Pacific Insurance Ltd v Vaivaimuli Corporation Limited [2020] WSCA 3 at [8]

^[48] Boodhoo v Attorney General of Trinidad and Tobago [2004] UKPC 17
^[49] Above note 45
^[50] See section 51B of the Act
^[51] See s21 New Zealand Police Regulations 1992
^[52] Ibid at s26(2) and s50(10)
^[53] Sees51A (2)(b) of the Act
^[54] Matamua v Medical Council [2000] WSCA 3.
^[55] Above note 4 at [17] – [20]
^[56] Above note 4 at [32]

^[57] Above note 36 at [14]. Also see Furnell v Whangarei High Schools Board [1973] AC 660 and Dagnayasi v Minister of Immigration [1980] 2 NZLR 130, 141, per Cooke J.

^[58] See paragraph 13.

^[59] Oil NZ Ltd v Northern Distribution Workers Union [1989] 3 NZLR 580