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Singirok v Justice Bidar [2001] PGNC 135; N2068 (13 February 2001)

N2068
PAPUA NEW GUINEA


[IN THE NATIONAL COURT OF JUSTICE]


OS 141 OF 2000


BETWEEN


JERRY SINGIROK

Applicant


AND


HONOURABLE JUSTICE JALINA COSMAS BIDAR
AND REGINA SAGU

First Respondent


AND


THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent


WAIGANI : Sheehan, J
2000 : 13 December
2001 : 13 February


JUDICIAL REVIEW – challenge to Leadership Tribunal findings – Claim of error on face of the record – claims Findings of Unfair and in Breach of Natural Justice


Counsel:
M. Murray & C. Makail for Applicant
D. Cannings & J. Tuva for Respondents


SHEEHAN, J : The Applicant, Brigadier General Jerry Singirok the former Commander of the Papua New Guinea Defence Force was as such, subject to the provisions of the Organic Law on Duties and Responsibilities of Leadership. On the 20th and 21st of March, 2000 following an Inquiry by the Leadership Tribunal under the Chairmanship of Mr Justice Jalina, the applicant was found guilty on three counts of misconduct in office. The applicant now asks this Court to review the decision of the Leadership Tribunal which recommended his dismissal from office for such misconduct.


The applicant was formally charged with five counts of misconduct in office. He was found guilty of three of those charges, the remainder, counts three and five were dismissed. Counts one, two and four for which he was found guilty are in the following terms.


"BENEFITS RECEIVED FROM J&S FRANKLIN PTY LTD


ALLEGATION 1 THAT from April 1996 to March 1997 the Leader conducted himself in his official life and in his associations with other persons in such a way that he:


(a) placed himself in a position in which he could have a conflict of interests and might be compromised when discharging his official duties; and

(b) demeaned his office as Commander; and

(c) allowed his official integrity and his personal integrity to be called into question; and

(d) endangered respect for and confidence in the integrity of government in Papua New Guinea;

AND FURTHERMORE used his office for personal gain.


AND FURTHERMORE entered into transactions that might be expected to give rise to doubt in the public mind as to whether he had carried out the duty imposed by Section 27(1) of the Constitution.


IN THAT he did while he was Commander of the Papua New Guinea Defence Force secretly receive the benefit of a series of payments of money, totaling approximately K68,000.00, deposited in his private overseas bank account by a foreign company, J & S Franklin Ltd, which was in the business of, amongst other things, providing military supplies to Papua New Guinea Defence Force AND he did apply that money to private purposes;


THEREBY contravening Sections 27(1), 27(2) and 27(5)(b) of the Constitution."


"ALLEGATION 2 THAT from April 1996 to March 1997 the Leader accepted benefits from a foreign enterprise without exemption from liability by the Ombudsman Commission;


IN THAT he did accept the benefit of approximately K68,000.00 provided by J & S Franklin Ltd, a company incorporated in the United Kingdom;


THEREBY contravening Section 12(1)(a) of the Organic Law on the Duties and Responsibilities of Leadership."


"GIVING A FALSE FINANCIAL STATEMENT TO THE OMBUDSMAN COMMISSION


ALLEGATION 4 THAT in December, 1996 the Leader knowingly gave a financial statement to the Ombudsman Commission that was false in material particulars;


IN THAT he furnished a statement which:


(a) failed to declare that he held an account at the Waterloo Place, Pall Mall, Branch of the Lloyds Bank, London, and

(b) failed to declare the balance of that account; and

(c) failed to declare the gifts he had received from J & S Franklin Ltd during the period of the statement, namely 1,000.00 pounds sterling on 24th April 1996 and ten thousand pounds sterling on 5 July 1996.

THEREBY contravening Section 4(6)(b) of the Organic Law on Duties and Responsibilities of Leadership."


The grounds on which the applicant relies are set out in the amended statement filed in support pursuant to Order 16 Rule 3 of the National Court Rules and in brief may be stated as:


(1) That the Leadership Tribunal verdict was made in the absence of jurisdiction in that the decision contains

Mr Murray in detailed submissions for the Applicant in support of the grounds set out in the Amended Statement, contended that in count two, the Leadership Tribunal made an error in law that is apparent on the face of the record. It found the applicant guilty of bribery contrary to s. 11 of the Organic Law though he was not charged with such an offence.


He said that the second count for which the applicant was in fact charged is founded on Section 12 of the Organic Law. That section reads as follows.


"12. Acceptance, etc., of loans, etc.


(1) Subject to Subsection (2), a person to whom this Law applies who, or whose spouse or child under voting age-

from a person (including an unincorporated profit-seeking organization) or a foreign enterprise is guilty of misconduct in office.


(2) Subsection (1) does not apply to a normal bank loan, a loan from a Savings and Loan Society or a hire-purchase agreement obtained or entered into on the same or similar terms and conditions applicable to other borrowers or hirers, as the case may be.

(3) The Ombudsman Commission may, by instrument in writing, either absolutely or subject to such terms and conditions as is (5) specified in the notice, exempt a person or a class of persons from any liability under Subsection (1) where, in its deliberate judgment, it is reasonable to do so having regard to the purposes for which the loan, franchise or other benefit or advantage was obtained.

(4) The Ombudsman Commission may publish guidelines specifying the terms and conditions subject to which it will consider granting an exemption to a person or class of persons under Subsection (3)."

It was therefore contended that not only was the Leadership Tribunal in error, it exceeded its jurisdiction in finding the applicant guilty of an offence for which he was not charged. Further, in making such a finding the Tribunal in recommending dismissal on a count for which he was not charged was equally acting in excess of jurisdiction. And of course to charge a person with one offence and find him guilty of another is to act in breach of natural justice.


For the respondents Mr Cannings pointed out that not only had the applicant not been charged with bribery in either allegation one or allegation two; there had been no finding of bribery against him either. He was charged in allegation one with the receipt and use of benefits from a foreign company. He was charged in allegation two under s. 12 for failing to obtain an exemption for receipt of those benefits received from an overseas company. Counsel for the Respondent submitted that the decision of the Tribunal itself shows that neither the findings of guilt in allegations one and two were findings of bribery against the applicant at all. Indeed such a finding was unnecessary to establish either of those charges, or allegation four either.


The finding of misconduct on the first allegation was complete upon the Tribunal finding that the applicant had received benefits – a series of payments of monies – from a foreign company and applied them to his private purposes. The Second allegation like the first also concerned the receipt of benefits from a foreign company. The finding of guilt, of misconduct in this count was the finding of failure to seek exemption from liability from the Ombudsman Commission for such receipt. Similarly the finding in allegation four was that the Applicant had failed to report the receipt of these benefits as part of his annual leaders statement to the Ombudsman Commission. The decision, the true finding of the Tribunal on allegation two(2) is set out in its decision of 17 March 2000 at pages 29 and 30 exhibited before this Court.


"ALLEGATION 2


This allegation relates to Major General Singirok’s failure to obtain an exemption from the Ombudsman Commission under S.12(3) of OLDRL the gift or benefit or advantage he received or was continuing to receive through monetary payments by J & S Franklin. In regard to this allegation, Mr Murray has referred us to his submissions on Allegation One (1)....


We have considered his submissions in relation to allegation one (1) and note that what is alleged here is different. Failure to obtain an exemption is not the same as receiving a benefit or benefits or failure to disclose such benefits. There is clearly no evidence that he obtained an exemption from the Ombudsman Commission. He has also not given any specific explanation for such failure except perhaps that he was under so much pressure to bring a military solution on Bougainville so he could not attend to it. Whilst that may be so, the payment from J & S Franklin was not "one off" payment but continued through his account in London for some time so he should have sought exemption to cover himself against future payments or payments already received. We are therefore satisfied as to his guilt on this count and as such we convict him."


The submission of Counsel for the Applicant referred to in that decision (also exhibited in this Court) contended that the actions of Franklins in opening a Visa account and depositing funds in it were not acts within the applicant’s knowledge and remain gifts per se. They did not amount to any bribe or inducement of the applicant. The further deposits or financial assistance affected by Franklin were of its own volition and must remain as gifts only. The submission also asserted that there was no evidence before the Tribunal that the financial assistance was given as a bribe or inducement for return of favours to Franklin’s. Thus it was not open to the Tribunal to conclude that the financial assistance was given as a bribe or inducement for return of some favour by the applicant.


Counsel for the applicant also relied on the findings of the Tribunal in respect of allegation three (3). That related to charges of misconduct through improper procurement procedures for obtaining military supplies. It was submitted that because the Tribunal found the applicant not guilty on that count, it was argued that it was not open to the Tribunal to find the applicant guilty of bribery. That is because, it was argued, the essential element of a reciprocating favour for the alleged gift was not made out.


There was no contention that the Applicant had not received the benefits as alleged in count one(1). Counsel in fact conceded that the acceptance of such gifts was unlawful just as the applicant himself had acknowledged in evidence before the Tribunal that he had been wrong in his acceptance of such gifts.


It is clear that the second allegation before the Tribunal deals with a secondary aspect of the first. Under the first allegation the applicant is charged with misconduct because of his secretly receiving benefits from a foreign company contrary to Section 27(1)(2)(5) of the Constitution. The Second allegation charges the applicant with misconduct for failing to seek an exemption from the consequences and liability of such receipt of benefits by due application to the Ombudsman Commission under Section 12(3) of the Organic Law. The Tribunal makes this clear in the first paragraph of its decision in respect of the second allegation (page 29) where it says,


"This allegation relates to Major General Singirok’s failure to obtain an exemption from the Ombudsman Commission under S.12(3) of OLDRL for the gift or benefit or advantage he received or was continuing to receive through monetary payments by J & S Franklin."


The words emphasised in that sentence clearly indicate that this charge was a follow-on from the first. The words emphasised are obviously taken from Section 12(1)(c) of the Organic Law. There is no indication in the allegation itself that the offence alleged relate to loan monies which is what Section 12(1)(a) is concerned with. The decision continues "Failure to obtain an exemption is not the same as receiving a benefit or benefits or failure to disclose such benefits...." Once again clearly indicating the link with allegation one and s. 12 (1) (c).


There is therefore no merit in the applicant’s claim that in its findings of the 17th of March, 2000 he was found guilty of bribery under Section 11 of OLDRL either in respect of allegation one (1) or in respect of the second count. The Tribunal does deal with the question of whether the applicants receipt of monies from Franklins was a bribe or no in its determination of the first allegation. But it is there dealt with in assessing the submissions made on behalf of the applicant in his closing address to the Tribunal not for the purpose of determining guilt on that count. The Tribunal said there:


"it has been submitted to us by Mr Murray that since the payments were made at J & S Franklins own accord, coupled with the lack of evidence that it was not done as a bribe or inducement for return of a favour, it cannot amount to a bribe or inducement. That is it was a gift per se".


The Tribunal did not accept the submission that the receipt of benefits were unsolicited gifts that the applicant was free to accept for his private use. It went on to say:


"With respect we are unable to accept Mr Murray’s submissions. Not only has Major General Singirok admitted receiving the money through his Visa Card account, he has told no one about it. Too worsen the situation he has used the monies in the said Card account for his personal and private purposes. If it was not a bribe then there is no evidence before us to show why J & S Franklin continued to deposit monies into his account. When a high ranking public official such as the Papua New Guinea Defence Force Commander, who is required by law to disclose any gifts or favours decides to keep such gifts of favours a secret and then proceed to use such gifts or favours for personal and private purposes. What other conclusion is an ordinary person to reach other than one of misconduct.


On the evidence before us we also cannot reach any other conclusion other than that reached by the Ombudsman Commission. We accordingly find him guilty of misconduct in office."


The Tribunal therefore rejected the contention of the applicant in respect of allegation one (1) that the payments could not amount to a bribe or were not an inducement. The Tribunal record shows that it refused to accept the submissions of the Applicant Counsel that these could not be bribes.


But that refusal was not because bribery was a necessary element establish the misconduct charged. The rejection of argument that the gifts were not bribes for the reasons offered, only signifies the Tribunal’s refusal to accept that there had been some accidental or otherwise unlooked for benefit that the applicant had been party to. That is, the conclusion that the benefits received and made use of could only be bribes was to directly reject the submissions of innocent gift made and unknown to the Applicant and to clearly categorize the receipt of those benefits as amounting to misconduct.


There was no finding of bribery in these counts simply because such a finding was unnecessary. The receipt and acceptance of monies from a foreign company, (allegation one) not exempted (allegation two) and unaccounted for, (allegation four) was sufficient to establish the charges.


Returning to allegation two(2) the finding of the Tribunal was that the applicant was guilty of the misconduct set out in the terms of the allegation he was charged with, that is failure to obtain an exemption for the gift, benefits or advantages received from a foreign company. That is a charge under Section 12(1)(c) of the OLDRL not Section 12(1)(a) cited in allegation two(2).


While failure to cite the appropriate sub subparagraph of Section 12 can be said to be an error of law on the face of the record, the discovery of error is not a self executing invalidation of the Tribunal finding. In Judicial Review the determination of the appropriate relief, if any, remains in the discretion of the Court. In this case I am satisfied that such error is quite insufficient to have any finding of the Tribunal set aside, because it is not an error in any way affecting the substance of the decision.


The misquotation of the enumeration of the appropriate sub subparagraph of s. 12 detailed and set out in the charge and in the Tribunals decision, was, I am satisfied an insignificant error. The charge itself clearly states and shows the intent of the charge, one clearly understood and addressed by the Tribunal. Equally clearly, there was no misapprehension of the nature and content of the charge on the part of the applicant. Submissions of counsel for the Applicant to the Tribunal state that,


"it is the leaders submission that this allegation is similar to allegation one (1) already dealt with above. The only difference between this and the first allegation is that the gift or benefit accepted must be without a exception from liability by the Ombudsman Commission. In other words the Ombudsman Commission must be made aware by the letter of the benefit to be exempted.


As to what evidence is available before this Tribunal gives me in respect of this allegation, is our submission that much of that which needs to be submitted here is already covered in allegation one (1) above. That is, the leader has made admissions that he received the benefit (money) from Mr Franklin. We therefore request the Tribunal to consider the leaders submission in respect of evidence by taking that which have been submitted in allegation one (1) above."


That submission follows and uses the terms of s. 12(1)(c). It was in essence, as referred to earlier, that the benefits received by the applicant were unsolicited gifts. That submission of course was no denial or counter to the allegation. And of course gifts not exempted are in any case proscribed by the same subsection 12(1)(c). The Applicants acknowledgment of the receipt and use of such benefits (or gifts) made the finding of misconduct that the Tribunal arrived at, inevitable.


Nor could it be said that the error of enumeration in allegation two(2) has prejudiced the applicant in any way or caused him any injustice. Such could only be said to have occurred if the error precluded him from raising some valid defence that would lead as of right to a finding that he was not guilty of the charge. The allegation, which was correctly understood by the applicant, counsel and the Tribunal alike does not support such a claim. I am satisfied that had the error as to the proper subsection been adverted to at any time during the Tribunal Inquiry there would have been ready acknowledgement by all parties, that the correct citation was Section 12(1)(c) and the appropriate amendment made.


It was argued as a further ground for review that while general misconduct is covered under Section 27 of the Constitution, because the Organic Law provides the particular offences of misconduct under specific sections, (as s. 11 andd s. 12) the general provisions of Section 27 are therefore superceded and specific allegations under the specific sections of the Organic Law are the appropriate charges that should be pursued


I find no merit in this argument. Section 28 (d) of the Constitution provides that an Organic Law may "prescribe specific acts that constitute misconduct in office...." But creation of specific charges of misconduct under the Organic Law does not in any way detract from the overall precedence of Section 27 of the Constitution relating to and creating offences of misconduct. Nor am I satisfied there is any merit in the contention that the failure to establish anyone count precludes the finding of guilt in respect of another. Specifically, in this case, it is not the law that because of the finding of the Tribunal in count three (3) it was not possible for it to find misconduct in any other particular count.


Therefore as to the contention that the applicant was found guilty of bribery I am satisfied, as the record clearly shows, that was not the case and the submission must fail. As for the argument of an error on the face of the record invalidating findings in respect of count two (2) or indeed any count I am satisfied that here too the applicant has failed to make out any case warranting review.


There remains then the contention of the applicant that in its recommendation of penalty it had nonetheless taken irrelevant matters into account in determining its recommendation on penalty in that it based its determination of penalty on the basis that the benefits received by the applicant had indeed been bribes.


In its decision on penalty of 20 March commencing on page three (3) the Tribunal sets out the basis on which an appropriate recommendation on penalty must be decided. It points out that the provisions for alternate penalties under Section 28(1A) of the Constitution clearly state that penalties, alternate to dismissal from office may only be imposed when there is a finding of no serious culpability on the part of the person found guilty, and that public policy and public good does not require the ordinary penalty of dismissal. That is a clear and correct statement of the relevant law under which the Tribunal must act.


The decision of the Tribunal was that it should recommend dismissal for the misconduct disclosed. The Tribunal rejected innocent receipt of unlooked for gifts or benefits. The Tribunal in its determination for dismissal in respect of allegations two (2) and four (4) indicates that the Applicants failing to seek exemption and failing to report those benefits in fact showed the Applicant’s intention to conceal these. Such a conclusion was one open to it on the facts before it. Under such circumstances the Tribunal found serious culpability on the part of the applicant such that only dismissal from office was appropriate and that alternative remedies under the Leadership Code were wholly inappropriate.


There remains the contention by the applicant that there had been a failure by the Tribunal to consider as relevant considerations on the issue of penalty "the balancing act of returning the US450,000.00 kina to the State".


There is also argument for the Applicant, that the Tribunal took account of irrelevant matters when it stated that public policy and public good demanded that the plaintiff be dismissed because of the fear of a repeat of similar misconduct (Ground 3.2.5). There is no merit in these arguments.


At page eight (8) of its decision on penalties the Tribunal said that "we have not considered alternative penalties for this count as we are of the opinion, for reasons we have given, that public policy and public good demand that he be dismissed from office lest something similar is done either by him if he is allowed to continue in office or by someone else who assumes the office of the Commander in future." That says no more than that the acceptance by a leader of benefits from a foreign company and applying it to his their private use, is so serious a matter that it can only be visited with dismissal from office, and that the decision the Tribunal delivers, must make that clear, so that all leaders and future leaders are clearly aware of this.


It is clear from the decision of the 20th of March, 2000 that the Tribunal considered all mitigating factors put before it [listing them on pages nine (9) and ten (10)] including the contention regarding the returning of the US450,000.00 to the State. But the Tribunal found that having considered all mitigation the allegations amounting to serious culpability nonetheless warranted dismissal.


I am satisfied that these finding’s were open to the Tribunal and arguments put forward by the Applicant that such conclusions were unreasonable or irrelevant cannot stand. Penalties cannot be categorized harsh and severe or disproportionate to the findings when they are directly in line with the provisions of the Constitution and the Organic Law. They are determinations within jurisdiction of the Tribunal and when as here are based on and disclosed reasoning, are within discretion within that jurisdiction.


In the result then I am satisfied that the applicant has made out no grounds for review of the Tribunals decision, it is therefore dismissed.
_____________________________________________________________________
Lawyer for the Applicant : Murray & Associates
Lawyer for the Respondents : Solicitor General

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