Home | Databases | WorldLII | Search | Feedback Papua New Guinea Leadership Tribunal

Somare, In re Reference by the Public Prosecutor [2011] PGLT 2; N4224 (21 March 2011)

N4224

PAPUA NEW GUINEA
IN THE LEADERSHIP TRIBUNAL

LT 1 OF 2010

REFERENCE BY THE PUBLIC PROSECUTOR

OF A MATTER PURSUANT TO SECTION 27 (2) OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP

TO THE TRIBUNAL

APPOINTED UNDER SECTION 27 (7) (d) OF THAT LAW TO INVESTIGATE, INQUIRE INTO AND DETERMINE ALLEGED MISONCDUCT IN OFFICE

IN THE MATTER OF
GRAND CHIEF SIR MICHAEL SOMARE, GCL, GCMG CH CF KtJ MP
PRIME MINISTER
MEMBER FOR
EAST SEPIK PROVINCIAL
MEMBER
EAST SEPIK PROVINCIAL ASSEMBLY

THE HONOURABLE ROGER GYLES, AO QC, CHAIRMAN,
THE HONOURABLE SIR BRUCE ROBERTSON, MEMBER
THE RIGHT HONOURBLE SIR ROBIN AULD, MEMBER

Hearings held at WAIGANI:
10th, 11th, 14th, 15th March 2011

DECISION ON GUILT: 21ST MARCH 2011

Counsel:
Mr. Pondros Kaluwin with Mr. Timothy Ai – for the Public Prosecutor
Mr. Ian Molloy, Mr. Kerenga Kua, and Mr. Justin Wohuinangu – For the Leader

TRIBUNAL DECISION ON GUILT

SECTION 1

INTRODUCTION

1.1. We begin by explaining what the Tribunal is deciding and what it is not deciding. The allegations of misconduct in office by the Grand Chief Sir Michael Somare GCL GCMG CH CF KtJ, MP (the Leader) all relate to or arise out of the obligation imposed upon a person to whom the law applies (a leader) by s4 of the Organic Law on the Duties and Responsibilities of Leaders (Organic Law on Leadership) to give to t he Ombudsman Commission statements of income, assets, other interests and liabilities. There is no allegation of a breach of any of the substantive provisions of part II of the Organic Law on Leadership which prohibit various corrupt practices. The allegations now fall into 3 categories:

1. Three (3) years for which no statements were filed

2. Five (5) years for which statements were filed late

3. Ten (10) years for which the statements that were provided were incomplete in material particulars.

1.2. The first two (2) categories require little introductory explanation. The third does. Section 4 (6) (b) of the Organic Law on Leadership relevantly provides that a leader who knowingly, recklessly or negligently gives to the Ombudsman Commission a statement that is "false, misleading or incomplete in a material particular" is guilty of misconduct in office. It is not alleged that nay of the statements were false or misleading. It is only alleged that they were incomplete in material particulars. Furthermore, the Public Prosecutor is seeking to establish those allegations do not allege that the Leader received or held hidden income or assets. The complaint is that there were blanks in the forms returned. The case presented by the Ombudsman Commission and the Public Prosecutor does not involve the Tribunal in any inquiry into assets, income or liabilities of the Leader.

SECTION 2

APPOINTMENT OF THE TRIBUNAL AND THE ALLEGATIONS

2.1. The Tribunal was appointed by Sir Salamo Injia Kt, Chief Justice of Papua New Guinea, to inquire into and determine allegations of misconduct in office by the Leader. A copy of the instrument of appointment and the notes accompanying it are Appendix 1 to this decision.

2.2 Those allegations had been referred to the Public Prosecutor by the Ombudsman Commission on 26 June 2008 pursuant to s 27(1) of the Organic Law on Leadership and, in turn, by the Acting Public Prosecutor, to the Chief Justice on 13 December 2010 for the appointment of a tribunal pursuant to s27(7)(d) of the Organic Law on Leadership and then to this Tribunal. The Reference by the Public Prosecutor is Appendix 2 to this decision.

2.3 The allegations in the Reference, and only those allegations, constitute the "matter" referred to the Tribunal pursuant to s27(2) of the Organic Law on Leadership.

2.4 Part II of the Organic Law on Leadership deals with the Responsibilities of Leadership. S4 of part II is critical to the case. It requires a Leader to file annual statements of income, assets and so no whilst in office. It provides (relevantly) as follows:

STATEMENT OF INCOME, ETC.

"(1) A person to whom this Law applies shall –

(a) within three months after Independence Day; or

(b) within three months after becoming such a person.

as the case may be, and at least once in every period of 12 months while he remains such a person, give to the Ombudsman Commission a statement to the best of his knowledge setting out, in respect separately of himself and his spouse and any of his children under voting age-

(a) the total assets including money, personal property and real property in the possession or under the control of each of them;

And

(b) the total income received by each of them during the period to which the statement relates and the source of each of those incomes; and ...............

(2) The period to which a statement under Subsection (1) shall relate is:

(a) in the case of the first statement-the preceding 12 months; and

(b) in any other case-the period since the last statement was given.

(3) In the case of sundries and minor items it is sufficient if the declaration shows their general natures and approximate amounts or values.

(4) The Ombudsman Commission or other authority may, by notice in writing to a person to whom this Law applies, require him to explain or given details or further details of any matters relating to the statement including-

(a) sundries and minor items shown in accordance with Subsection (3); and

(b) omissions or apparent omissions; and

(c) discrepancies in the statement or between it and other statements or other information available to Ombudsman Commission or other authority.

................

(6) A person to whom this Law applies who-

(a) fails without reasonable excuse (the burden of proof of which is upon him) to give to the Ombudsman Commission or other authority a statement in accordance with Subsection (1), or to give any explanation or details required under Subsection (4); or

(b) knowingly, reckless or negligently gives such a statement or explanation, or any such details, that is or are false, misleading or incomplete in a material particular,

is guilty of misconduct in office".

2.5 The evident purpose of giving statements pursuant to s4 is to enable the Ombudsman Commission to keep track of the assets, income, liabilities and dealings of a leader each 12 months. Scrutiny of those statements over time will assist in detecting possible breaches of the substantive provisions of the Organic Law on Leadership.

In addition to the power in s4(4), Part III of the Organic Law on Leadership gives the Ombudsman Commission functions and powers of examination and investigation of each statement lodged with it under s4. The provision of timely statements is a fundamental plank in ensuring that a person carries out his public duties as a leader with integrity. The purpose of the Leadership Code is to "preserve the people of Papua New Guinea from misconduct by its leaders". See Supreme Court Reference No. 2 [1992] PNGLR 336 at 341 – 342.

2.6. Other relevant provisions of the Constitution and the Organic Law on Leadership are set out in Appendix 3 to this decision.

SECTION 3

ROLE AND PROCEDURE OF THE TRIBUNAL

3.1 Section 27 of the Organic Law on Leadership is included in Part V which is headed "Enforcement". Sub-sections (4) & (5) are as follows:

(4) The tribunal shall make due inquiry into the matter referred to it, without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.

(5) If the tribunal finds that a person to whom this law applies is guilty of misconduct in office, it shall recommend to the appropriate authority that –

(a) he be dismissed from office or position; or

(b) as permitted by Section 28 (1A) further provisions relating to the (Leadership Code) of the Constitution and in the circumstances set out in that subsection – some other penalty provided for by an Act of the Parliament be imposed.

3.2 One of the governing authorities concerning the role and procedure of the Tribunal is the decision of the Supreme Court in re James Eki Mopio [1981] PNGLR 416. The reference to the Supreme Court in that case raised the question of the standard of proof which a tribunal should apply. The answer) at page 421) was:

"There is no absolute degree or standard of proof to be applied by the Leadership Tribunal. The Tribunal must be reasonably satisfied of the truth of the allegations and it must give full weight to the gravity of a charge of misconduct in office by a person subject to the Leadership Code, to the adverse consequences which may follow and to the duty to act judicially and in compliance with the principles of natural justice. Such satisfaction in matters so grave can never be achieved on a mere balance of probabilities".

The Supreme Court in that decision made clear that the role of a tribunal is to enquire into particular allegations of misconduct in office. As we have pointed out, the "matter" which is referred to the Tribunal is the matter referred to the Public Prosecutor by the Ombudsman Commission.

3.3 In Mao Zeming v Justice Timothy Hinchliffe (2006) N 2998 (6 February 2006) Injia DCJ (as the Chief Justice then was) said:

"Whilst it is true that the tribunal conducts its own investigations and its proceedings are not judicial, the tribunal sits as a quasi-judicial body, as an impartial and neutral body, and its proceedings are governed by principles of natural justice. Given the prosecution role conferred on the Public Prosecutor by the Constitution and the Organic Law on the Duties and Responsibilities of Leadership, the practice has developed that the proceedings before a leadership tribunal are conducted in an adversarial manner and the onus to contest the evidence sought to be adduced by both parties primarily falls on the parties and not the tribunal".

In other words the role of a tribunal is limited to determining the matter referred to it, namely the allegations of misconduct in office referred by the Ombudsman Commission to the Public Prosecutor. It is not to carry out a roving investigation into the affairs of the leader concerned as if it were a commission of inquiry. Section 27(4) deals with the manner in which the tribunal goes about its task.

3.4 A tribunal presided over by Injia, J (as the Chief Justice then was) in re Andrew Kumbakor (2003) N2363 (8 May 2003) said:

"The scheme of provisions of the Leadership Code and Organic Law on the Duties and Responsibilities of Leadership is that the tribunal's jurisdiction to inquire into the matter before it is defined by reference to the matter 'REFERRED' to it by the Public Prosecutor. In the past as in the present case, the Public Prosecutor developed the practice of presenting formal charges of misconduct in office, which made reference to the relevant duty in the Constitution and Organic Law on the Duties and Responsibilities of Leadership and the relevant factual particulars. These charges are accompanied by the Statement of Reasons prepared by the Commission as required by Organic Law on the Duties and Responsibilities of Leadership s.27(2). It is our view that the tribunal's inquiry is restricted to those allegations of misconduct in office as pleaded in the referral documents. The tribunal itself has no power to alter or re-draw those allegations or charges as it pleases.

As to the scrutiny of the evidence, the evidence must support the wording of those charges in order to sustain the charge. And because the "consequences of the most serious kind" flow from the allegations, the standard is indeed a high one: In re James Eki Mopio, ante. For it would constitute a denial of natural justice for a leader to be called upon or expected to answer an allegation which does not form part of the charges "preferred" against him". (Emphasis added)

We adopt and apply the principle which is outlined, but that does not require narrow and technical rulings about pleadings and particulars. This Tribunal does not follow the rules of a court of strict pleading, as is made clear by s27(4) of the Organic Law on Leadership. The essence is captured in the last sentence. A leader cannot be called upon to answer an allegation that amounts to a new charge or matter.

SECTION 4

CONDUCT OF THE HEARING

4.1 The Tribunal convened on Thursday, 10th March 2011, 9:30am. A complete transcript of all hearings, including rulings made in the course of them, was taken.

4.2 A question immediately arose with regard to the suspension of the Leader pending the determination by the Tribunal. As foreshadowed in the Note accompanying the Instrument of Appointment, counsel for the Public Prosecutor invited the court to exercise the discretion under s142(6) of the Constitution to suspend the Leader. Mr. Ian Molloy for the Leader indicated that he was taken by surprise by the application and eventually the Tribunal agreed to adjourn the application until Monday, 14th March at 9:30am.

4.3 On Monday, 14th March the Tribunal heard the application for suspension. The arguments from both counsel assumed that the Tribunal had the discretion to exercise the power to suspend conferred by s 142(6) of the Constitution. By a majority the Tribunal ruled that it could exercise the discretion to suspend, and in the exercise of such discretion, unanimously declined to do so.

4.4 On 10th March, after dealing with the initial application for suspension, the Tribunal considered an application for the adjournment of the whole proceedings, or a stay of the inquiry into the matter referred to us, pending determination of the Supreme Court proceedings, (OS) SC. No. 2 of 2011, challenging the validity (amongst other things) of the Referral by the Ombudsman Commission to the Public Prosecutor. Having heard submissions, the Tribunal refused this application and noted it would proceed until restrained by a Court. The Tribunal was later advised that no application was to be made to the Supreme Court for an interlocutory injunction restraining us.

4.5 There was a further application on behalf of the leader, which was expressed as being related to the Tribunal's jurisdiction. It was in essence an application for the Tribunal to summarily dismiss the whole 25 allegations on the grounds that they were duplicitous, ambiguous, internally contradictory, failed to disclose an offence with sufficient particularly or at all and that, over-all, the allegations were unfair and oppressive. The Tribunal heard submissions from both counsel on this issue although the matters raised did not go both counsel on this issue although the matters raised did not go to jurisdiction in the traditional manner. The Tribunal declined to accede to the application on the basis that the issues raised would be best considered during the hearing in light of the evidence which was to be called and the submissions eventually to be made.

4.6 The hearing then proceeded. In accordance with the usual practice, Mr. Kaluwin, counsel for the Public Prosecutor (who appeared with Mr. Ai) presented the case against the Leader. He tendered the Reference by the Public Prosecutor to the Tribunal and the Explanatory Memorandum and summary of Allegations. The Reasons of the Ombudsman Commission were tendered but not as evidence of the underlying documents. Those documents were proven by an affidavit of Mr. Chronox Manek, the current Chief Ombudsman, who also gave supplementary oral evidence. He was cross examined by counsel for the leader.

4.7 Mr. Molloy appeared with Mr. Kua and Mr. Wohuinangu for the Leader. He tendered and read affidavits by the Leader and his accountant and family friend Mr. Glenn Blake, each of whom gave supplementary evidence and was cross examined by Mr. Kaluwin.

4.8 Closing submissions were made by counsel as to guilt and the Tribunal adjourned at 2pm on Tuesday 15 March 2011 to consider it decision on that issue.

SECTION 5

SECTION 27 OF THE CONSTITUTION AND SECTION 23 OF THE
ORGANIC LAW ON LEADERSHIP

5.1 One aspect of the case is common to all categories of allegations and it is convenient to consider it now. Each category contains allegations of specific breaches of s4(1) in relation to the annual statement for certain periods. The same failures are then aggregated to allege separately contravention of each of s27 of the Constitution and s23 of the Organic Law on Leadership (which are set out in Appendix 3). Counsel for the Leader submitted that the allegations of the breach of s27 of the Constitution and of s23 of the Organic Law on Leadership are misconceived and inappropriate and ought to be summarily dismissed. As proof of those allegations did not alter the evidence to be called, the Tribunal deferred consideration of that argument until closing submissions.

5.2 The first group consists of allegations 1, 6 and 14. Allegation 1 can be taken as an example:

THAT from May 1994 to May 1997 the Leader failed to carry out his obligations imposed by Section 27(1)(b), 27(1)(c) and 27(1)(d) of the Constitution:

IN THAT he consistently failed without reasonable excuse to give to the Ombudsman Commission his annual statements for the periods from:

16 May 1994 to 15 May 1995; and

16 May 1995 to 15 May 1996; and

16 May 1996 to 16 May 1997

THEREBY contravening Section 27(1)(b), 27(1)(c), 27(1)(d) and Section 27(5)(b) of the Constitution.

The only acts which are alleged as constituting the offence are the acts that are the basis of allegations 2, 3 and 4. Thus, allegation 1 cannot be established unless one or more of allegations 2, 3 and 4 is established. There is no additional fact that has to be established to prove breach of s27 which might increase culpability. In judging culpability for the purposes of s28(1A) of the Constitution, it is well established that a tribunal is to take into account the overall effect or totality of all of the findings of this misconduct that are made in assessing the recommendation to be made (See, for example, Re Yumbui 2nd March 2007).

5.3 The same thing may be said in relation to the allegations of breach of s23 of the Organic Law on Leadership, namely, failure to co-operate with the Ombudsman Commission. The relevant allegations are 5, 13 and 25. Allegation 5 can be taken as an example:

THAT from May 1994 to May 1997 failed to cooperate to the best of his ability with the Ombudsman Commission.

IN THAT despite numerous reminders, the Leader failed without reasonable excuse to give to the Ombudsman Commission his annual statements for the periods from:

16 May 1994 to 15 May 1995; and

16 May 1995 to 15 May 1996; and

16 May 1996 to 15 May 1997

THEREBY contravening Sections 23 of the Organic Law on the Duties and Responsibilities of Leadership.

Again the only acts alleged to constitute the offence are the precise acts alleged in counts 2, 3 and 4. Allegation 5 cannot be established unless one or more of allegations 2, 3 or 4 is established. Thus, in this group also, allegation 5 adds nothing to allegations 2, 3 and 4.

5.4 In a court proceedings, such counts could be regarded as vexatious, oppressive and an abuse of process and dismissed summarily. As a tribunal in charge of its own procedures, all we need to say is that the allegations are unnecessary and "overload" the case (See, for example, Re Dr. Puka Temu 2nd August 2006 page 13). We say nothing about other case. These allegations also produce unnecessary complications.

5.5 One such complication is s18 of the Constitution. There are issues whether failure to give statements, giving them late or giving incomplete statements could amount to a breach of either s27 of the Constitution or s23 of the Organic Law on Leadership.

5.6 There is an argument that the conduct prohibited by s27 of the Constitution is of a different order and character altogether from failure to comply with an Organic Law imposing an obligation to give annual statements to the Ombudsman Commission. Section 27 of the Constitution deals with conduct which lacks integrity. Section 4 of the Organic Law on Leadership requires provision to the Ombudsman Commission of regular timely and accurate financial statements as a means of prevention and detection of conduct lacking in integrity. S23 of the Organic Law on Leadership is in Part III of the law dealing with Investigations. The provision of statements by a leader is governed by s4 which is within Part II of the Act dealing with the Responsibilities of Leadership. There is an argument that failing to submit statements is only a breach of s4 and could not amount to a failure to co-operate.

5.7 Resolving those arguments would be very likely to be regarded as involving the interpretation of a Constitutional Law and so, by s18 of the Constitution, within the exclusive jurisdiction of the Supreme Court. This would require reference to the Supreme Court for determination and, presumably, the adjournment of these proceedings while that took place. That would be an unfortunate result where the outcome of Supreme Court proceedings would have no material effect upon the recommendations the Tribunal is to make if the specific allegations are established.

5.8 For those reasons allegations 1, 6, 14 and 5, 13 and 25 should be and are summarily dismissed.

SECTION 6

FAILURE TO GIVE ANNUAL STATEMENTS

6.1 Category one of the Reference alleges the Leader is in breach because of failures without reasonable excuse to give annual statements to the Ombudsman Commission as required by Section 4(1) of the Organic Law on Leadership.

6.2 There were five allegations. Numbers 2, 3 and 4 allege there was a failure to give any annual statements for three consecutive annual periods between May 1994 and May 1997. (See Appendix 2) The first allegation that the same failures amounted also to a breach of Section 23 of the Organic Law on Leadership have earlier been dismissed. (See Section 5).

6.3 The form and nature of all the allegations were subjected to a spirited challenge by the Leader's counsel which at a technical level had force. It is, however, essential in an inquiry of this sort to ensure that substantial and sensible justice is done.

6.4 A leader against whom allegations are made must be fully and fairly informed of the acts or omission complained, afforded natural justice in a robust and transparent manner and provided with the fullest opportunity to challenge or to respond to the allegations.

6.5 Mr. Molloy responsibly acknowledged that the primary issue in this part of the case was whether for the years May 1994 to May 1995, May 1995 to May 1996 and May 1996 to May 1997 no annual statements were given by the Leaders. It became common ground during the hearing that the proper starting point is to determine on the evidence whether in respect of each year, a statement had been given.

6.6 By way of example allegation 2 of the Reference was:

"THAT from May 1994 to May 1997 the Leader failed without reasonable excuse to give to the Ombudsman Commission his annual statements for the period from 16th May 1994 to 15th May 1995 in accordance with Section 4 (1) of the Organic Law of the Duties and Responsibilities of Leadership".

We have focused simply on whether there was an annual statement given for the period from16th May 1994 to 15th May 1995 and treated the opening words of the allegation as surplus.

6.7 The Public Prosecutor relied primarily on an affidavit filed by Chronox Manek, the Chief Ombudsman and a member of the Ombudsman Commission. He was appointed on 1 July 2008. Consequently he did not have personal knowledge of the matters to which the referred, but gave his evidence based on a consideration of the files in the Ombudsman Commission Offices. Mr. Manek gave additional oral evidence and was cross examined. The effect of his evidence was that no returns for the relevant period were on the file where they should have been.

6.8 It appears from the documents he presented in evidence that there have been long-standing issues between the Ombudsman Commission and the Leader about annual statements. A letter from the Ombudsman Commission of 25th May 1994 referred to the need for annual statements for the years ending May 1993 and May 1994.

In July 1994 it wrote expressing concern that there had been no acknowledgement or reply to the May letter. However, a letter from the Leader of 26th July 1994 (which was received on the 31st of July) enclosed annual statements for the years ending in May 1993 and May 1994. A letter of 5th September 1994 sent to the Leader acknowledged receipt of those statements, but noted deficiencies in them and requested further attention and the need for additional information. An appointment was made but apparently not kept.

6.9 A letter of 9th December 1994 from the Acting Ombudsman to the Leader indicated that no progress had been made and the leader was advised of possible action.

6.10 Despite this warning there was no further action until 11th October 1995, when the Leader was sent a standard letter advising that his annual statement for the period from 16th May 1994 to 15th May 1995 was required within 3 months. Threats of action without follow-up by both the Commission and the Leader became common place.

6.11 The next relevant letter was with a request for annual statements on 9th August 1995 in respect of the years ending May 1994. There was a reminder on the same date of a lack of statement for the year to May 1995 and, for the first time, a request for a statement have been accompanied by a letter from the Chief Ombudsman dated 19th August 1996 specifically noting that there had been no returns for the years to May of 1992, and May 1993 in addition to those for the following three years.

6.12 On 14th April 1997 there was a request for annual statements for the years May 1996 and May 1997. It was unusual in that the period to be covered had not yet concluded, but the three months period in which compliance was requested, would have taken the matter to July which was after the end of the 12 month period.

6.13 Most importantly there is a letter of the 24th July 1997 from the Chief Ombudsman to the Leader which in the clearest terms noted.

"Meanwhile our records show that you have the following outstanding Annual Statements which you have not submitted to the Commission during your previous Leadership position.

1. 16th May 1994 to 16th May 1995

2. 16th May 1995 to 15th May 1996

3. 16th May 1996 to 15th May 1997

They are already overdue and you are asked to submit them to the Ombudsman Commission as soon as possible".

6.14 On 16th January 1998 a further letter was sent to the Leader by the Chief Ombudsman reminding him that for the three relevant periods no returns had been filed. Not surprisingly the continuing absence of any response lead on 6th February 1998 to a further letter being sent in which the Leader was advised that, in accordance with Section 20 (3) of the Organic Law on Leadership, he had the right to be heard in respect of his failure without reasonable excuse to furnish annual returns as required for these three years, and for failing to comply with various reminder notices.

6.15 If the records were comprehensive and correct and that was the totality of the relevant material in respect of the three (3) years in issue, there is a plain chronology suggesting that there had been failure to provide the necessary statements. In general it demonstrated on-going request with no response of any sort although it mast be said that there was a lack of discipline and vigour on the part of the Ombudsman Commission in reacting to the continuing disregard of proper requests.

6.16 The terms of the letter of 6th February 1998 were clear and unequivocal but the next time there was any reference to these three years in any correspondence was not until a letter of the 18th October 2006. That is eight and a half years later. The October 2006 letter set out in detail the background to all the allegations which are currently before the Tribunal. It included a general chronology of events, the rights which the Leader had and the consequences which could follow. It was silent as to why it emerged after such an inordinate delay.

6.17 Of importance in evaluating this period of total inaction as to the absence of statements for these 3 years is the fact that throughout those years ongoing omissions of the Leader to comply with other requirements had been under constant consideration and review. It is not necessary for us to identify every matter but there were frequent requests for annual statements for successive years often accompanied by a letter. For example a letter dated 19th August 1998 (which sent out the annual statements to be completed for the period May 1997 to May 1998) did not mention the matters which had been raised in February of that year and had not been attended to.

6.18 Similarly the reminder notice for the year 1997 to 1998 was sent on 5th October 1998. Past omissions were not mentioned. Correspondence in June and October 1999 included a request for an extension of time for some later statements but made no mention of anything earlier. A letter of 4th November 1999 relating to the year to May 1999 noted outstanding annual statements for the year to May 1998, but there was silence as to the three statements the subject of the current allegations.

6.19 Reminders in respect of subsequent periods were issued from time to time throughout 2000, 2001 and 2002. By way of example a comprehensive letter of the 6th August 2002 signed by the Ombudsman set out outstanding matters but made no mention of the gap of three years in statements.

6.20 The Leader eventually furnished on 30th September 2003 his annual statements for the years ended May 2000, May 2001, May 2002 and May 2003. The Commission acknowledged each of these by a letter of 23rd October 2003, but made no mention of the fact that there were other earlier statements which had not been filed.

6.21 Mr. Manek had no personal knowledge of any of this, but said that there was nothing on the file which could explain this extraordinary state of affairs or the lengthy periods of delay.

6.22 The normal ability to rely on business records (particularly governmental documents) as being comprehensive and accurate is severely dented in such circumstances.

6.23 There were further difficulties. Mr. Molloy referred to two particular examples of unreliability. In a letter of 19th August 1996 the Chief Ombudsman wrote to the Leader noting that he had not submitted his annual statements for the year to May 1993. However, in a letter of 5th September 1994 (almost two years earlier) the Acting Chief Ombudsman had written to the leader acknowledging receipt of such a statement.

6.24 Further, a letter of 12th February 2002, acknowledged receipt of the Leader's annual statements for the periods to May 1998 and to May 1999. One of the allegations before this Tribunal is that the statement lodged for the year May 1998 was noncompliant. The Commission cannot that statement. It is surmised that it may have been lost. It was noted that the Ombudsman Commission had shifted premises a number of times. It was accepted by Mr. Manek that, although now there is a register about statements received, prior to the availability of modern technologies that did not exist. There is no evidence of even basic indices kept or summary notations made on files.

6.25 Trying to rely on available records from such a long time ago raises serious questions. There is no direct evidence to verify or explain what took place up to 15 years ago. The Tribunal must also have regard to other available evidence. There is the evidence of the Leader who is adamant that he had at all time complied with the requirements and lodged statements although he accepts some were late. The Leader said he asked Mr. Blake to assist him with the outstanding returns in 2000. At that time the Leader gave to Mr. Blake the forms for the years ending in May 1997, 1998 and 1999, Mr. Blake said that he assumed that at that time everything had been dealt with.

6.26 The Leader's evidence is that he now believes that the documentation was furnished, although he does not identify when or how. That in itself is not the end of enquiry. The question is whether historically the statements were actually given, not whether the Leader now honestly believes that to be the case. He has provided no copies of statements for the three years in which he claims to have given them but for which there are no statements on the Ombudsman files, nor did he produce any other documents to verify his claim.

6.27. There is nothing to suggest that the Leader actually responded at all to the clear and unequivocal demands made upon him on the 6th February 1998. There is an unexplained void about the statements for the three relevant years. But, as indicated, the matter is not made easier when, for completely unexplained reasons, the issues raised in February 1998 went totally off the radar until 18th October 2006.

6.28 When the Leader's lawyers turned their attention to the merits of this problem the critical matter was addressed in a letter from the law firm, Posman Kua Aisi of 31st January 2007 which was relevant stated:

1. Failure to give annual statements
   

(1) Annual Statements for:

(a) 1994/1995

(b) 1995/1996

(c) 1996/1997

(2) Our instructions are

(a) Sir Michael honestly believe that he had completed and signed these three (3) annual statements

(b) He believe he instructed his staff to lodge these

completed and singed Annual Statements.

(c) He believe the Statements were lost by his staff by their inadvertences or oversight and presumed irretrievably lost at this point.

(d) Alternatively, if lodged, the Ombudsman Commission may have received and misplaced them. Please check your records.

(e) Sir Michael's instructions are corroborated by the fact that since your last letter of 6th February 1998, on this subject, he received no further communication from you for over 5 years that these Statements were still pending.

(f) This (paragraph) (e) above) has led Sir Michael to believe none was outstanding or alternatively you had no continued interest in pursuing the matter. Much of the information required to complete any Statement would have be irretrievably lost. The upshot of this is that your extensive silence amounts to a waiver or an stopped on your right to pursue these alleged outstanding Statements. You are hereby precluded from pursuing this further.

(g) Notwithstanding paragraph (f) above, Sir Michael asks that he be given fresh copies and further 30 days within which to attempt to complete sign and return to you these Statements. He has no intention of deliberately evading this responsibility.

6.29 As a matter of commonsense and reality we would have assumed that there might have been a rather more definitive and robust assertion on behalf of the Leader that the statements had been given. The lawyer's letter was speculation about various possibilities which may not be surprising after so many years. Lawyers like to have back-up positions and perhaps the form of the letter does nothing more than reflect their cautious approach.

6.30 A further factor which goes into the mix is evidence from Mr. Blake who said that he had been engaged to provide assistance to the Leader late in 2000. He said that he was given the forms for May 1997/98 and May 1998/99 and some correspondence relating to them. He said he asked the Leader if there were any earlier outstanding statements and was told they had all been prepared and lodged. Mr. Blake said that there were scant records and he had to extract necessary financial information from the Leader. He prepared a letter of 31st January 2002, which the Leader signed when the statements for the years to May 1998 and May 1999 were sent.

6.31 The question which must arise is why, if at the time of Mr. Blake's engagement, there were outstanding annual statements for the years to May 1995, 1996 and 1997, would the Leader have not asked Mr. Blake to deal them as well? Filing statements for some years only and not for others does not make sense. It is clear that Mr. Blake had no easy task and took a considerable period before he managed to file statements. He has done so for subsequent years and just recently has prepared statements for the 3 years in question. The matters apparently could be attended to when there is a will to do so.

6.32 Later in his affidavit, Mr. Blake said that in February 2002 the Leader handed him a letter from the Ombudsman acknowledging receipt of the statements, which did not mention the earlier outstanding statements. Mr. Blake continued to assist with the annual returns for the Leader and saw relevant correspondence from the Ombudsman Commission, including the letter of 18th October 2006, about which Mr. Blake said:

"This came as a bombshell to me because it referred to outstanding returns for the years 1994/95 and 1996/97. I had never heard of this before and of course it did not accord with what Sir Michael Somare had told me when I had been asked to prepare the 1997/1998 and 1998/99 returns".

6.33 An allegation of not giving an annual statement under the Leadership Code framework is serious. A failure to do so is a dereliction of an important duty. It is misconduct in office. As we said earlier, when assessing the level of proof required, we must consider the seriousness of the allegation and the consequences which could flow from it.

6.34 Taking the totality of the available evidence, the absence of evidence about critical matters and the possible inferences to be drawn from what is available, although there may be suspicion we cannot be satisfied that it has been established to the required standard that these three statements were not filed. Therefore allegations, 2 3 and 4 must be dismissed.

SECTION 7

DELAYS IN SUBMITTING ASSUAL FINANCIAL STATEMENTS

7.1. The Public Prosecutor alleged five instances of late submission "without reasonable excuse" by the Leader to the Ombudsman Commission of his annual financial statements for each of the year – ends 16th May, 1999, 2000, 2001, 2002 and 2004, each constituting "misconduct in office", contrary to section 4 of the Organic Law on Leadership. Allegation 11, relating to the year ending May 2003 was not pressed and is dismissed.

7.2 As indicated in Section 5, the Public Prosecutor made further and overlapping allegations of "misconduct in office" against the Leader in respect of these matters under Section 27 (1) (b), (c) and (d) of the Constitution and under Section 23 of the Organic Law on Leadership. For reasons that we have given in that section, we have dismissed the allegations under those provisions because they add nothing to the prosecution case.

7.3 The leader did not dispute the facts as to the alleged late provision to the Ombudsman Commission of his financial statements, all of which are plainly documented in the Commission's papers in evidence before the Tribunal. Regardless of whether the Leader's explanations for his delays – primarily pressure of work – amount to "reasonable excuses", he is concerned to bring home to the Tribunal the effect of the burdens of his high office.

7.4 Before turning to the detail of each of the five allegations, we draw attention to section 4 (1) and (2) of the Organic Law on Leadership as to the closing date each year for submission by Leaders of their financial statements. The over-all intent of the provisions is clear, namely to require provision of a statement to the Ombudsman Commission within a fixed period after the end of the 12 months period to which it relates.

7.5 Section 4 (1) and (2) read, so far as material:

"4(1) A person to whom this law applies shall-

(a) within three months after Independence Day;

(b) within three months after becoming such a person, as the case may be, and at least once in every period of 12 months while he remains such a person, give to the Ombudsman Commission a statement to the best of his knowledge setting out ... [his assets, income, liabilities etc,]"

(2) The period to which a statement under Subsection (1) shall relate is

(a) in the case of the first statement – the preceding 12 months; and

(c) in any other case – the period since the last statement was given."

7.6 The Ombudsman Commission, in its operation of the regime in relation to the Leader – and the Public Prosecutor in the formulation of his allegations – have, in the main, taken each period to run from 16th May of one year to 15th May in the text. At or shortly after each 12 months' expiry date, the Commission has routinely issued a statement form to the Leader for completion and return within three months. From time to time the Leader made requests for extension of time, which the Commission mostly granted. There is nothing in the documentation before the Tribunal indicating any challenge by the Leader to that regime.

7.7 Any uncertainties in the structure and wording of the time provisions in section 4 (1) and (2) of the Organic Law on Leadership do not mask the basic obligation they imposed on the Leader to give a complete and accurate statement of his financial affairs within a reasonable period following the expiration of each consecutive period of 12 months. The obligation was there, and the Leader at no stage complained that he did not know what was expected of him as to timing in the years covered by these allegations.

7.8 The Leader can have been under no misapprehension as to the nature and gravamen of the allegations he had to meet, given his undisputed long delays and his exchanges of correspondence with the Ombudsman Commission in the course of them. Mr. Molloy suggested that the statutory requirements should be read in the Leader's favour so as to allow him twelve months in which to provide a statement after the expiry of the period to which it related. However, as will appear, each of the delays, the subjects of these allegations, were in any event, given well outside a further year from the expiry of the 12 months period to which it related.

7.9 The Ombudsman Commission's schedule, upon which the Public Prosecutor relied, shows the following periods of which complaint is made, allegation by allegation.

7.10 Allegation 7 - year ended 15th May 1999 – issue of statement form, 25 June 1999, requesting submission by 25 September 1999; followed by three reminders on 13 October 1999, 4th May 2000 and 19 July 2000; statement given January 2002: 2 years four months following the end of the relevant period.

7.11 The Ombudsman Commission, in paragraph 58 of its Reasons, asserts that it is issued a statement form to the Leader on 25th June 1999 requiring its return duly completed within three months of 15th May 1999, i.e. allowing less than two months, not three, to the Leader to comply. By a letter from the Ombudsman Commission to the Leader of 13th October 1999, it suggested that its 25th June letter had in fact related to a period from16th July 1998 to 15th July 1999, and had notified him of a period of 3 months period for submission ending on 25th October 1999.

7.12 By a further letter from the Ombudsman Commission to the Leader of 4th November 1999, responding to the letter's request for an extension on account his recent travel commitments outside Papua New Guinea, the Commission granted him an extension until 30th November 1999. It appears from a memorandum of a telephone ca, on 24th November on the Ombudsman commission's file that someone in the Leader's office telephoned the Commission that day suggesting that he had never received the 1998/1999 annual statement form, and requesting it before flying abroad two days later, on 26th November. The memorandum contains a note by somebody in the Commission's office of a further telephone call from Seke Karingal, the Leader's personal assistant, denying the suggestion that he had not received the form earlier. Nevertheless, the Commission, on 25th November 1999, sent him a further statement form, now requiring its return within a further 3 months, namely 25th February 2000.

7.13 There was then a period of five months silence on the part of both the Commission and the Leader, broken on 4th May 2000 with a letter from the Commission reminding him of its provision to him of a statement form on 25th November and nothing his failure to comply with the further extension. The Commission's letter concluded by urging the Leader "to take immediate steps to comply with the requirement of the Law", and calling for an early response. The Ombudsman Commission's file shows no response, early or otherwise, to that request. The Commission finally, on 19th July 2000, wrote to the Leader – now in respect of an end date for 1999 of 15th May instead of 15th July – indicating to him, pursuant to section 17 and 20 of the Organic Law on Leadership its initiation of an investigation of suspected misconduct in office, and informing him of his right to be heard, pursuant to section 20 of the Organic Law on Leadership.

7.14 Despite that ominous indication, the matter went dead again, this time for about 17 months before the Leader eventually submitted the statement at the end of January 2002 with a covering letter stating, without more, that his delay had been due to his inability to obtain account balances from two banks, prompting him then to submit the statement without that information, but asserting that "in all cases the balances are very small". Such was his explanation in the end for over two years delay in complying with his statutory requirements.

7.15 Allegation 8 – years ended 16th May 2000 – issued of statement form, 18th July 2000, requesting submission by 18th October 2000; two reminders one on 9th august 2000 and the second on 24th November 2000; statement given 30th September 2003: 3 years four months following the end of the relevant period.

7.16 The Ombudsman Commission, on 18th July 2000, issued a statement form to the Leader requiring its return, duly completed, within three months of 15th May 2000, i.e. allowing him less than one month, not three, to comply. By a letter of 9th August 2000 the Commission wrote to him again, asserting that he had three months from the date of its issue of the form, namely until 18th October 2000, in which to submit the statement. The Leader did not provide a statement within that time or, seemingly, make any other response. Accordingly, the Commission wrote to him on 24th November 2000, pursuant to sections 17 and 20 of the Organic Law on Leadership, indicating its initiation of an investigation into suspected misconduct in office, and informing him of his "right to be heard". As in the case of the 1999 statement, the Leader appears to have ignored that indication and offer, and he took nearly three years, until 30th September 2003, before he provided a statement for 2000 (along with other overdue statements).

7.17 Allegation 9 – year ended 16th May 2001 – issue of statement form. 18th April 2001, requiring submission by 18th July 2001; two reminders, one on 17th May 2001 and the second 21st August 2001; statement given, 30th September 2003: 2 years, 4 months following the end of the relevant period.

7.18 The Ombudsman Commission issued a statement to the Leader on 18th April 2001, giving him just short of three months in which to provide it, namely by 15th July 2001. The Commission wrote again to him 17th May 2001 varying slightly the return date to 18th July 2001, so as to provide him with the full three months. Following the failure of the Leader to comply with the notice, the Commission, on 21st August 2001 wrote indicating to him, pursuant to sections 17 and 20 of the Organic Law on Leadership, its intention to conduct an investigation into suspected misconduct in office in respect of his failure to provide his statement within the required period. As in the case of the overdue statements for the previous two years, the letter evoked no response from the Leader, this time for over two years, until he provided a statement (with other overdue statements) – still incomplete – on 30th September 2003.

7.19 Allegation 10 – year ended 16th May 2002 – issue of statement form, 16th August 2002, requiring submission by 6th November 2002; one reminder of 19th August 2003; statement given 30th September 2003;

1 year, 2 months following the end of the relevant period.

7.20 The Ombudsman Commission issued a statement form to the Leader on 6th August 2002 for the period 16th May 2001 to 15th May 2002, requiring its completion and return within three months from the end of 15th May 2002, namely by 15th August 2002, effectively only a few days notice. The Commission included with its letter its congratulation to the Leader on his recent re-election to Parliament and also enclosed various papers reminding him of his duties and responsibilities under the Organic Law on Leadership, including his obligation under the Leadership Code to provide to the Commission timely and complete statements of his financial affairs. By a further letter of 19th August 2002, the Commission varied the date for required submission to 6th November 2002. A further ten months elapsed before the Leader submitted the statement on 30th September 2003.

7.21 Allegation 12 – year ended 16th May 2004 – issue of statement form, 21st October 2004, requiring submission by 21st January 2005; one reminder of 3rd march 2005; statement given 5th April 2006: 1 year, 11 months following the end of the relevant period.

7.22 Although the Ombudsman Commission's reminder letter of 3rd March 2005 also urged the Leader "to take immediate steps to comply with the requirements of the law", he showed the same lack of urgency as in previous years, by taking some 15 months to submit the form, and, as before, submitted it incomplete and without explanation or apology for the delay.

7.23 There was evidence, orally and on affidavit from the Leader and Mr. Blake. The Leader's evidence was that he had always intended to comply promptly with his obligations under the Constitution and the Organic Law on Leadership in preparing and submitting those statements. He stated that, initially, he had done it all himself, but by about 2000, the build-up of pressure in his governmental responsibilities and travel between his constituency and Port Moresby and overseas had caused him to fall behind – hence his request to Mr. Blake in 2000 to assist him. Mr. Blake's evidence about the help he gave to the Leader in respect of the year ended 16th May 1999 and other subsequent years covered by the delay allegations did not add anything by way of excuse or mitigation. He confirmed, as far as he could, that the Leader's documentation was incomplete, but added that that he had appeared to provide him with whatever he could find.

7.25 As we have indicated, Mr. Molloy, in his submissions to the Tribunal, acknowledged that at least some of the explanations for delay spoken to by the Leader and Mr. Blake might not amount to a defense in law, that is, might not constitute reasonable excuses as required by section 4 (6) of the Organic Law on Leaders. How ever, he prays in aid the Leader's heavy and important responsibilities of public office and pressure of work over the year covered by these allegations.

7.26 Having regard to the repetitive and long delays and voluminous correspondence from the Ombudsman Commission over the years, the Leader has plainly not discharged the onus of proof imposed on him by section 4 (6)(a) of the Organic Law on Leadership to show reasonable excuse for his failure in any of the five years to make timely returns. The heavy burdens of his high public office throughout were not a basis for suggesting that he had a reasonable excuse for non-compliance with the Code. They made it all the more imperative that he should have been scrupulous in its observance. He had plenty of support in his official and private staff to assist him, if he had been prepare to instruct then adequately for the purpose. As the Ombudsman Commission remarked in paragraph 134 of Observations in its Statement of Reasons,

"... the law imposes onerous duty on the leader. If he had his officers assisting him, he should ensure that they help him to comply with the law. It is in his interests that he does so. The Commission does not accept the Leader's response as reasonable or justifiable."

7.27 The evidence in the Inquiry of the Leader and his privately instructed accountant, Mr. Blake, have thrown no new light on the issue to support a different view. Accordingly, we find the Leader guilty of misconduct in office in respect of allegations 7, 8, 9, 10 and 12.

SECTION 8

GIVING INCOMPLETE STATEMENTS

8.1 This category is based upon s4(6)(b) of the Organic Law on Leadership as to incomplete statements. It covers allegations 14 to 25 inclusive, although allegation 22 is not now pressed, and allegation 17 cannot succeed because the Ombudsman Commission cannot produce the statement in question. Allegations 14 and 25 have already been dismissed (See section 5). The same drafting issues apply to the remaining allegations as applied to allegations in the other categories. However, it is clear that the gist of them is that each of the statements which was lodged was incomplete. It will suffice to set out allegation 24.

"THAT from May 1992 to May 1994 and May 1997 to May 2005 the Leader knowingly, recklessly or negligently gave to the Ombudsman Commission annual statements that are incomplete in material particulars throughout the period from 16 May 2004 to 15 May 2005".

Each of allegations 15 to 24 respectively should be understood as applying to the statement lodged for the period identified in the allegation (2004 to 2005 in this example) and the introductory words in each count can be regarded as surplus.

8.2 The starting position of the Public Prosecutor is simple. Each of the statements which was given in a standard form which include directions of the following kind;

"Please READ THE ENTIRE FORM and the REQUIREMENTS FOR EACH ITEM CAREFULLY before furnishing the information. It is not sufficient to leave any space blank. Where you have nothing to declare enter the words.

"NONE" or "NOT APPLICABLE". If the space provided for any items is not enough furnish the information in separate schedules and make appropriate reference in the space provided for that item."

In each of the statements, a number of items were not completed either by being left wholly blank or some details blank. It is said that these omissions establish the allegation.

8.3 The response on behalf of the Leader is equally simple. The standard form and the instructions for completing it are not prescribed by law and have no statutory force. The failure to make an entry in a box in a form does not establish that a statement is incomplete in a material particular.

8.4 We agree that the mere omission to complete an item in form which does not have statutory force cannot of itself establish that the statement is incomplete in a material particular. To make out that allegation, it would be necessary to establish that there was information about a material matter which existed but was not included. Materiality is to be judged by the matters identified in s.4 (1) of the Organic Law on Leadership. Neither the Ombudsman Commission nor the Public Prosecutor has alleged that the Leader had undisclosed or hidden assets or income or other matters falling within s.4(1) of the Organic Law on Leadership

8.5 However, omissions which relate to a material matter within s.4(1) which is disclosed in a statement but where there is a failure to give all material particulars of it in the statement require consideration. Counsel for the Leader submits that this approach to these allegations was not articulated by the Public Prosecutor in opening and should not be permitted. However, the allegations are drawn widely enough to cover all of the omissions in the relevant returns. Narrowing the focus of them to particular deficiencies is in order. The Leader and his counsel were apprised of the issues during the course of the evidence and in the course of argument. The contents of the statements speak for themselves and need no other evidence.

8.6 One example, which is common to all of the statements lodged, is the treatment of employment income. In the first of the statements in issue here – that for 1992 – 1993 – the form included the following heading

"(a) Employment income: Includes salary, wages, allowances, fees, leave pay, pension, commission, bonus, gratuity or any other payment in money and value of all benefits in kind etc received by or on behalf of you, your spouse(s) and children under voting age during THE PERIOD".

The headings which followed were entitled – description of employment; by whom; employer's name; gross income; deductions; and net income. The Leader or someone on his behalf entered "parliament" in relation to the first three sub-headings and left the last three blank/ although the precise words dealing with employment income vary from statement to statement, the essence was the same – in no case were any figures included for gross income, deductions or net income. The Leader's own evidence was that he has been in receipt of income from public offices continuously for all of the relevant periods.

8.7 Section 4(1) of the Organic Law on Leadership requires the provision of the actual amounts received as well as the source of the income, as is confirmed by6 s4(3). The statements of the Leader provided the source but not the actual income. In that respect each statement is incomplete in a material particular.

8.8 Another example, which is common to several of the statements, is the disclosure of the existence of a bank account but a failure to relevant date. An example can be seen in the annual return of 1998 – 1999. Four accounts are identified, but only by their nature- savings; cheque; deposit and savings. The account number, the name and address of the bank, the date of opening or closing of the account during that period, and the balance in that account at the end of the period (or any other period) are not supplied for any of the accounts. The omitted information was material having regard to the provisions of s4(1) of the Organic Law on Leadership.

8.9 The annual statements for 1999 – 2000, 2000 – 20001, 2001 0 2002 and 2002 – 2003 were forwarded under cover of a letter from the Leaders which included the following;

"Please note the number of details regarding each return have not been completed as the information in relation to these questions is not in my possession at present. I have given instructions for the information to be obtained and upon receipt will forward this to you".

The bank accounts were treated in the same way in those years as they had been in the year 1998 – 1999 and were plainly among the details not completed. There is no evidence that the missing details were provided later.

8.10 Mr. Molloy, counsel for the Leader, submits that, even if incompleteness of statements in a material particular can be established, breach of s.4(6)(b) of the Organic Law on Leadership is not made out. He points out that the obligation under s4(1)(b) of the Organic Law on Leadership is that the Leader provide "a statement to the best of his knowledge" setting out the matters contained in that provision. He submits that not only is failure to comply with that obligation not established by the Public Prosecutor on its case, but the evidence from the Leader and his accountant show, that the statements included the best information that could be provided in relation to t hose matters. Mr. Molloy submits that "knowledge" in the section is actual knowledge and points out that there is no obligation imposed to make any enquiries and there is no reverse onus.

8.11 However the allegation of breach of s.4(6)(b) is not framed as failure to comply with subsection 4(1). That is the provision of s.4(6)(a). The allegation requires proof that the statement is incomplete in a material particular. That is an objective test. The question then is whether the statement was given knowingly, recklessly or negligently.

The nature of the omissions in the present case are such that the incompleteness of the information provided must have been known by the Leader. Indeed he expressly recognized this in relation to some of the years in question by the letter he wrote. The form of the statements establishes that he had not forgotten about his parliamentary salary or about his bank accounts. He must have known that he did not supply sufficient details about them. We refer to the relevant evidence latter.

8.12 That a leader should obtain material particulars before submitting a return is consistent with the general purpose of section 4. If the matter were otherwise, and the obligation to be fulfilled in providing a statement was as limited as submitted by Mr. Molloy- being based on the Leader's actual state of mind and memory at the time of completing the statement without checking his records or making any inquires – the purpose of the section would not be served and breach would be almost impossible to prove. In saying this we should not be thought necessarily to accept the submission for the Leader as to the proper construction of the phrase "to the best of his knowledge" in this particular statutory setting in might well include knowledge to which he had reasonable access going beyond his memory at the moment of completion of the statement As our focus in on s.4 (6) (b) we need say no more about that question.

8.13 The relevant evidence as to knowledge by the Leader in his affidavit was as follows:

"I am aware of the my obligations to give the Ombudsman Commission annual financial returns pursuant to the Organic Law on Leadership Initially I personally completed my returns and lodged them. It has never been my intention not to comply with my obligations in respect of my financial statements. I have completed my statements honestly and to the best of my ability.

However, through pressure of the business of government, the need to travel between my electorate and Port Moresby and on overseas visits, and the constant demands on my time I acknowledge that my returns fell behind. I regret that.

In about 2000 I asked Glenn Blake, an accountant and a family friend, to assist me with outstanding returns. At that time I had the forms of May 1997/98 and May 1998/99 which I gave to Mr. Blake. It was my assumption at that time all previous returns had been lodged.

Mr. Blake asked me for all the information I had at the time. At that time I had shifted between Waigani and East Sepik and unfortunately my records were not good. I gave Mr. Blake all the records I had and answered all of his questions. Mr. Blake prepared my returns for 1998 and 1999. He also prepared my returns of subsequent years.

The small hand-writing on each of my returns from 1998 onwards is Mr. Blake's. I have signed the statements which to the best of my knowledge and belief are true and correct.

I am aware there is an issue that the returns are incomplete. I would like to make it clear that my income has been my parliamentary salary apart from minor bank interest or earnings on shares. I am not sure of parliamentary income in any one year because it is subject to allowances and other benefits and I am never provided any precise information".

8.14 In cross examination the following evidence was given by the leader:

"MR. KALUWIN: In relation to all the annual statements that were submitted, there is the space that you have to fill for your salary or income, you were putting the source where it was coming from but not the actual figures.

A. I personally do not think it is by regulation. What you do is, you have to fill in the income and salaries are all attached, even the salary slips are attached for purposes of the ombudsman and in this particular case I have filed what I thought in the best of my ability, I did what I did.

Q. Sir from of the annual statements that were submitted, you have not declared the amount that you received from your salary despite having been reminded as you can see in this letter.

A. Your Honours, the salary determination by Parliament is determined by salary tribunal. There is no difference; we get no increment in salaries. From time to time we get allowances, transport allowances, travelling allowances and so on and so forth and they are all filled in with the applications and that is all we get. We have no extra – I have no extra salary from a business or anything like that. I have been living on my parliamentary salary since 1968 up to today".

and later:

"Counsel for the Public Prosecutor;

Q. I appreciate that but counsel is looking back your parliamentary salary and there are no figures inside that?

1. No, I did not fill them.
17. Why is that?
1. Well, there is nothing – no reason why I should if – if I was earning I would put in there.
   

SIR A. AULD: Is it a matter of public record what your salary and allowances are year by year?

A. It is all parliamentary salaries year by year.

Q. But is it matter of public record?

A. Yes, it is a matter of public record and I have always filled those.

MR. KALUWIN: Were you at any time informed by the Ombudsman Commission that you should declare to them your income in respect to your salary?

A. We get forms annually like all every other member of parliament. They are leaders who put under the leadership code.

We all make our returns every year and there is not one year that I can remember that I have missed out filling my application to the ombudsman giving details of my salary, parliamentary entitlements and what I gain from parliament all these years.

17. And Sir, are you saying that the information you provided was complete?
    
1. In this case information was not complete".
   

8.15 Mr. Blake said in his affidavit;

"I set about preparing the 1998 returns. Sir Michael Provided all the information I requested including documents he could find. His documentation was incomplete. There were references for example to bank accounts opened for grandchildren but no statements or even information on the account numbers".

"I understand t here is an issue that the returns are incomplete. The information in the returns was the best that could be provided. As to Sir Michael Somare's parliamentary salary I was unable to obtain an actual figure from the Parliament for any one year. No pay advice slips or certificates are issued and frankly despite my best endeavors they were simply unable to tell me what Sir Michael had been paid in any one year".

8.16 In cross examination Mr. Blake gave the following evidence:

"A. But I did not have information.

Q. And, did you enquire with the leader to supply you with that I Information?

A. Yes, I did.

Q. And, was it supplied?

A. I contacted his personal assistant – his secretary – requested that all those details be obtained so that I could then attach it to the form. I requested that.

Q. For the remainder of the annual statements that you did there is no net income – there are no figures put under where it says net income. Did you try to enquire at all?

A. Yes, I did. Can I – I actually asked – I did not have the ability to contact National Parliament direct. I went to the proper authority which was through the Prime Minister or through the – not Prime Minister but to the Grand Chief for his personal assistant to obtain that information. That is what I did.

Q. And were you able to get the information that you required to fill in these forms?

A. Yes, I did. I requested that. Can I go back and you will note that in previous returns that are lodged that is exactly the manner in which those returns had been lodged. There was never a query that I was given prior to that as to whether there was to be a deviation from that because that was the way that had been reflected in previous returns. But can I just reiterate; and you will see that there is a letter that was drafted by myself and the returns were lodged that I noted to the Ombudsman Commission that there were certain information that I had not been able to get but this was signed by the Grand Chief but we were attempting to get that information. Chairman I think one of the problems often comes is that when I get dealt with information that may b e 4 or 5 years behind, it is very difficult to obtain that. I think it was also changed in the PNGBC move across to one of the banks, the information could not be obtained and in all other cases, it was very, very difficult.

Q. But in relation to the salary, would there be a slip for tax purposes?

A. I tried to obtain that through the end that is why in frustration I drafted the letter that we were lodging the return, however; I did not have that information".

8.17 Counsel for the Public Prosecutor points to letters of the 25th of May 1994, 5th of September 1994 and the 9th of December 1994 from the Ombudsman Commission to the Leader which expressly raised his failure to declare any income for a number of years including 1992, 1993 and 1994 and requested documents showing details of his parliamentary salary.

8.18 If it were necessary to do so, we would find that the statements in question were not completed to the best of the knowledge of the Leader, even if the nature of knowledge required were as restricted as submitted on his behalf. We do not accept that the Leader knew nothing about his Parliamentary salary or about the identity, location and state of the disclosed bank accounts at the relevant times.

8.19 Allegations 17 and 22 are not pressed by the Public Prosecutor and are dismissed. Allegations 14 and 25 have already been dismissed.

8.20 Allegations 15, 16, 18, 19, 20, 21, 23 and 24 are established. In each case, material particulars of the employment income of the Leader were not provided. Further, material particulars of disclosed bank accounts were not provided in the case of allegations 18, 19, 20, 21. Accordingly, we find the Leader guilty of misconduct in office in respect of allegation 15, 16, 18, 19, 20, 21, 23 and 24.

SECTION 9

SUMMARY OF FINDINGS

9.1 In respect of the Leader's duty under section 4 of the Organic Law on Leadership to provide to the Ombudsman Commission timely and complete annual financial statements, the Tribunal:

1) finds him not guilty of all three of the effective allegations against him of misconduct in office by failure to provide such statements, namely allegations 2, 3 and 4, and his summarily dismissed two others, namely allegations 1 and 5, as unnecessary;

2) finds him guilty of all five of the effective allegations against him of misconduct in office by delay in providing such statements to the Ombudsman Commission, namely allegations 7, 8, 9, 10 and 12, and has summarily dismissed three others, namely allegations 6 and 13 as unnecessary and allegation 11 as it was not pressed by the Public Prosecutor.

3) finds him guilty of the eight effective allegations against him of misconduct in office by providing to the Ombudsman Commission incomplete statements, namely allegations, 15, 16, 18, 19, 20, 21, 23 and 24, and has summarily dismissed four others, namely allegations 14 and 25 as unnecessary and allegations 17 and 22 as they were not pressed by the Public Prosecutor.

9.2 Prior to making any recommendations to the Head of State, His Excellency the Governor General pursuant to Section 27(5) of the Organic Law on Leadership, the Tribunal will provide an opportunity for further submissions and/or evidence.

Date this the 21st Day of March 2011

.................................(signed)
The Hon. ROGER GYLES AO QC, CHAIRMAN

N4224%20Somare,%20In%20re%20Reference%20by%20the%20Public%20Prosecutor00.png" alt="2011-03-21%20N4224%20Somare,%20In%20re%20Reference%20by%20the%20Public%20Prosecutor00.png" border="0" >

Organic Law on Duties and Responsibilities of Leadership

THE APPOINTMENT OF A LEADERSHIP TRIBUNAL

FOR THE PRIME MINISTER

I, Sir Salamo Injia Kt., Chief Justice, by virtue of the powers conferred by section 27 (2) and (7) (d) (iii) of the Organic Law on Duties and Responsibilities of Leadership and all other powers me enabling, hereby appoint the following persons to constitute the Leadership Tribunal to enquire into and determine allegations of misconduct in office by the Honourable SIR MICHAEL SOMARE, Prime Minister and member for East Sepik Province.

• THE HONOURABLE ROGER GYLES AO QC (Chairman): A former Judge of the Federal Court of Australia (at first instance and on appeal), the Supreme Court of the Australian Capital Territory and the Supreme Court of New South Wales.
  
• THE HONOURABLE SIR BRUCE ROBERTSON (Member): A former Judge of the Court of Appeal and the High Court of New Zealand; currently presiding Judge of the Court of Appeal of Vanuatu and Judge of the Court of Appeal of Samoa.
  
• THE RIGHT HONOURABLE SIR ROBIN AULD (Member): Former Lord Justice of Appeal of the Court of Appeal of England and Wales; former Judge of the High Court of Justice. Queens Bench Division of England and Wales; and currently President of the Court of Appeal of Solomon Islands.
  

Date this 21st day of February 2011

.................. (Signed)
Sir Salamo Injia Kt.
Chief Justice of Papua New Guinea

NOTES ACCOMPANYING INSTRUMENT OF APPOINTMENT OF TIRBUNAL

(1) The Tribunal will commence its sitting on Thursday 10th of March 2011 at 9:30 am in Courtroom No. 1, Supreme Court Building, Waigani.

(2) Enquiries concerning sitting of the Tribunal should be directed to the following:

Mr. Tongia Kekebogi, Associate to the Chairman and members of the Tribunal.

Tribunal Judges' Chambers

Supreme Court Building, Waigani

Telephone: 324 5721

Fax: 323 9294 / 325 7732

Email: [email protected]

Mrs. Veali Lama,

Executive Secretary to Tribunal

Tribunal Judges' Chambers

Supreme Court Building, Waigani

Telephone: 324 5723

Fax: 323 9294 / 325 7732

Email: [email protected]

(3) Parties intending to file documents for use at the inquiry may do so in the National Court Registry at Waigani pursuant to practice Direction No. 2 of 2010, under File Reference LT No. 1 of 2010. Documents are to be received, registered, sealed and returned by Mr. Pesoro Sarohafa. He can be contacted on:

Telephone: 324 5868

Fax: 325 7732

Email: [email protected]

(4) For avoidance of doubt, pursuant to Section 142 (6) of the Constitution subject to which Section 28 of the Organic Law on Duties and Responsibilities of leadership

N4224%20Somare,%20In%20re%20Reference%20by%20the%20Public%20Prosecutor01.png" alt="2011-03-21%20N4224%20Somare,%20In%20re%20Reference%20by%20the%20Public%20Prosecutor01.png" border="0" >

REFERENCE BY THE PUBLIC PROSECUTOR

OF A MATTER PURSUANT TO
SECTION 27(2) OF THE ORGANIC LAW
ON THE DUTIES AND
RESPONSIBILITIES OF LEADERSHIP

TO THE TRIBUNAL

APPOINTED UNDER SECTION 27(7)(E)
OF THAT LAW
TO INVESTIGATE, INQUIRE INTO
AND DETERMINE
ALLEGED MISSCONDUCT IN OFFICE

IN THE MATTER OF
GRAND CHIEF SIR MICHAEL SOMARE, GCL GCMG CH CF Kt.J, MP

PRIME MINISTER

MEMBER FOR
EAST SEPIK PROVINCIAL

MEMBER,
EAST SEPIK PROVINCIAL ASSEMBLY

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

REFERENCE BY THE PUBLIC PROSECUTOR

OF A MATTER PURSUANT TO SECTION 27(2) OF
THE ORGANIC LAW ON THE DUTIES AND
RESPONSIBILITIES OF LEADERSHIP

TO THE TRIBUNAL

APPOINTED UNDER SECTION 27(7)(e) OF THE LAW
TO INVESTIGATE, INQUIRE INTO AND
DETERMINE ALLEGED MISCONDUCT IN OFICE

IN THE MATTER OF
GRAND CHIEF SIR MICHAEL SOMARE, GCL GCMG CH CF Kt.J, MP

PRIME MINISTER

MEMBER FOR
EAST SEPIK PROVINCIAL

MEMBER
EAST SEPIK PROVINCIAL ASSEMBLY

WHEREAS on 26 June 2008 the Ombudsman Commission referred to the Public Prosecutor, under Section 29(1) of the Constitution and Sections 17(d), 20(4) and 27(1) of the Organic Law on the Duties and responsibilities of Leadership, a matter in respect of which it was satisfied that there was a prima facie case that Hon Grand Chief Sir Michael Thomas Somare, GCL GCMG CH Kt.J, MP (hereafter referred to as "The Leaders") was guilty of misconduct in office; and

WHEREAS the Leader is and has been at all relevant times a person to whom Division III.2 of the Constitution and the Organic Law on the Duties and Responsibilities of Leadership apply; and

WHEREAS I as Acting Public Prosecutor consider, pursuant to Section 177(1)(b) of the Constitution and Section 27(2) of the Organic Law on the Duties and Responsibilities of Leadership, that the matter should be proceeded with;

I HEREBY REFER TO THE APPROPRIATE TRIBUNAL appointed for the purpose by the Honourable Sir Salamo Injia Kt, Chief Justice of Papua New guinea, THE FOLLOWING MATTERS OF ALLEGED MISCONDUCT IN OFFICE, further particulars of which are contained in the statement of reasons referred to me by the Ombudsman Commission for its opinion that there is a prima facie case that the Leader had been guilty of misconduct in office, NAMELY,

CATEGORY ONE

FAILING WITHOUT REASONABLE EXCUSE TO GIVE ANNUAL STATEMENTS TO THE OMBUDSMAN COMMISSION

AND I ALSO FORWARD herewith the statement of reasons by the Ombudsman Commission for its opinion that there is a prima facie case that GRAND CHIEF SIR MICHAEL SOMARE, GCL GCMG CH CF Kt.J, MP has been guilty of misconduct in office.

DATED this .................. day of ...................................2010

...............................(signed)
JIMMY WALA TAMATE

ACTING PUBLIC PROSECUTOR

Other Relevant Constitutional and Statutory Provisions

The Constitution of the Independent State of Papua New Guinea includes:

Sect. 27 RESPONSIBILITIES OF OFFICE

(1) A person to whom this Division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, or not-

(a) to place himself in a position in which he has or could have a conflict of interest or might be compromised when discharging his public or official duties; or

(b) to demean his office or position; or

(c) to allow his public or official integrity, or his personal integrity, to be called into question; or

(d) to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea

(2) In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1).

(3) It is the further duty of a person to whom this Division applies –

(a) to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally or by usage), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under this section; and

(b) if necessary, to publicly disassociate himself from any activity or enterprise of any of his associates, or of a person referred to in paragraph (a), that might be expected to give rise to such a doubt.

(4) The Ombudsman Commission or other authority prescribed for the purpose under Section 28 (further provisions) may, subject to this Division and to any Organic Law made for the purposes of this Division, give directions, either generally or in a particular case, to ensure the attainment of the objects of this section.

(5) A person to whom this Division applies who –

(a) is convicted of an office in respect of his office or position or in relation to the performance of his functions or duties; or

(b) fails to comply with a direction under Subsection (40 or otherwise fails to carry out the obligations imposed by Subsections (1), (2) and (3),

is guilty of misconduct in office.

28. FURTHER PROVISIONS

(1) For the purposes of this Division, an Organic Law –

(a) may give to the Ombudsman Commission or some other authority any powers that are necessary or convenient for attaining the objects of this Division and of the Organic Law; and..........

(g) shall establish independent tribunals that –

(a) shall investigate and determine any cases of alleged or suspected misconduct in office referred to them in accordance with the Organic Law; and

(ii) are required subject to Subsection (1A), to recommend to the appropriate authority that a person found guilty of misconduct in office be dismissed from office or position; and............

(1A) An Organic Law may provide that where the independent tribunal referred to in Subsection (1)(g) finds that –

(a) there was no serious culpability on the part of a person found guilty of misconduct in office; and

(b) public policy and the public good do not require dismissal,

it may recommend to the appropriate authority that some other penalty provided for by law be imposed. ....................

(5) Proceedings under Subsection (1) (g) are not judicial proceedings but are subject to the principles of natural justice, and –

(a) no such proceedings are a bar to any other proceedings provides for by law; and

(b) no other proceedings provided for by law are a bar to proceedings under that paragraph.

Organic Law on the Duties and Responsibilities of Leadership.
Part III deals with investigations and includes:

17. FUNCTIONS OF THE OMBUDSMAN COMMISSION

For the purpose of this Law, the functions of the Ombudsman Commission, in addition to the functions specified in Sections 27 (responsibilities of office) and 29 (prosecution of misconduct in office) of the constitution and elsewhere in this Law, are –

(a) to examine or cause to be examined each statement lodged with it under section 4; and