R v University of the South Pacific [1985] FJLawRp 29; [1985] 31 FLR 81 (17 July 1985)

[1985] 31 FLR 81

IN THE SUPREME COURT OF FIJI

R. v. UNIVERSITY OF THE SOUTH PACIFIC

EX PARTE MALAKAI TUIULUPONA

[SUPREME COURT - Kermode, J., 17 July 1985.]

Civil Jurisdiction

(Judicial Review Disciplinary Committee of University of the South Pacific - enquiry into 'misconduct' procedures followed not fair - names of witnesses not disclosed prejudicial statement during proceeding - observations on procedure which might be followed in future inquiries.)

S. Singh for the Appellant.
D. C. Maharaj for the Respondent.

Application for an order quashing a decision of 23 May 1985 of the Disciplinary Committee of the University of the South Pacific to exclude the applicant from the University for the remainder of 1985.

Appellant had been charged with fighting and injuring one Tevita Ofa. The Committee enquired into the complaint and imposed the penalty of exclusion.

The applicant pursuant to Regulation 9 of the Disciplinary Regulations appealed against this penalty by the Committee; his appeal was dismissed.

The applicant now contended that the proceedings before the Committee were a nullity because there was a breach of natural justice in that he was not given any opportunity to cross examine witnesses or hear the evidence against him: further that the Committee took into account irrelevant matters and received evidence in camera against him.

Under the Fiji Constitution S.10 a person charged with a criminal offence must he given a fair hearing.

Subsection (2)(e) provided such person:

"shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before any court."

It further provided that except with consent the trial shall not take place in his absence unless his conduct rendered continuation of it in his presence impracticable.

The proceedings before the Committee were in the nature of a trial with witnesses called and examined and the appellant facing a charge of criminal nature. Therefore the basic principles of natural justice and fair play were required to give a fair hearing.

The procedure referred to by the Vice-Chancellor in his affidavit indicated applicant was called first, but was not present when the witnesses against him gave evidence. It was the practice not to disclose the names of witnesses. So applicant did not at the time know who were the witnesses.

Held: The Committee was not authorised to 'try' a criminal offence. Where a criminal offence was alleged the matter should have been reported to the Police; if they did not take action or if a conviction followed, the Committee could then have been directed by its Chairman to enquire if there had been 'misconduct' as defined in S.5.

The inquiry which was held could not be considered fair. The procedure would permit a person with a grudge to make statements which the applicant could not be permitted to correct or controvert; and he would not know who made the statements.

Another serious breach was a highly prejudicial comment made in the proceedings by the Director of Community Services about the applicant not relevant to the issue of deciding his guilt.

The Committee also chose to ignore the evidence of a sub-warden, an independent witness whose evidence was such that a court of Law would not be satisfied beyond reasonable doubt, the standard required in a criminal action that applicant had punched another student.

Observations on changes to inquiry procedure to be followed in future.

Decision of the Disciplinary Committee of 3 May 1985 excluding the applicant from the University quashed.

Any later confirmation of that decision declared to be a nullity.

Cases referred to:

University of Ceylon v. Fernando (1960) 1 All E.R. 631.
De Verleuil v. Knaggs (1918) A.C. 557.
Glynn v. Keefe University (1971) 1 N.Z.L.R. 487.

KERMODE. Mr Justice.

Judgment

The applicant seeks an order quashing the decision dated the 23rd of May, 1985 of the Disciplinary Committee of the University of the South Pacific to exclude the applicant from the University for the remainder of 1985.

The applicant pursuant to Regulation 9 of the Disciplinary Regulations appealed against the penalty imposed on him by Committee. His appeal was dismissed.

He now claims that the proceedings before the Committee were a nullity because there was a breach of natural justice in that he was not given any opportunity to cross-examine the witnesses or hear the evidence against him. He further complains that the Committee took into account irrelevant matters and received evidence "in camera" against him.

The applicant was apparently charged with fighting and injuring one Tevita Ofa on the 10th March, 1985. The Regulations do not require a formal charge. The Committee enquires into complaints against students and is empowered to impose the penalties listed in Regulation 7(1). There are 8 of them ranging from a reprimand to expulsion from the University.

The first observation I would make is that where a student is alleged to have been assaulted and injured a criminal offence has been committed and the University's duty is to report the matter to the police. The evidence before me does not indicate the nature of Tevita Ofa's injury but it was the result of an assault on him. If the police decide to take action and the student is convicted the Committee is not precluded from taking disciplinary action for breach of any of the Regulations of the University if it considers the student should be expelled or suspended or otherwise dealt with in respect of his actions which led to his conviction.

The University for reasons I shall refer to later has adopted a procedure when inquiring into complaints of misconduct which appears to ignore basic principles of natural justice.

One of those principles is a fair hearing.

Under section 10 of the Fiji Constitution a person charged with a criminal offence must be given a fair hearing by an independent and impartial court established by law. Subsection (2)(e) of this section provides that every person charged with a criminal offence:-

"(e) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before any court."

The subsection concludes that except with his consent the trial shall not take place in his absence unless his conduct renders continuation of the proceedings in his absence impracticable.

Section 10 merely spells out what is considered under the British system of justice, which Fiji follows to be the requirements of a fair hearing. Under subsection (8) the Constitution requires that any court or other authority required or empowered by law to determine the existence or extent of any civil right or obligation shall be independent and impartial. Any person appearing before such court or authority must he given a fair trial.

The proceedings before the Committee was not strictly a trial and there was no prosecutor but the proceedings were in the nature of a trial in that the applicant faced a charge which was in fact of a criminal nature preferred against him by the Committee and witnesses were called by the Committee and examined by the Committee. It behoved the Committee, therefore, to follow basic principles of natural justice and fair play and ensure that the applicant was given a fair hearing.

Mr Geoffrey Caston, the Vice-Chancellor of the University in his affidavit stated:-

"4. The procedure for hearing the complaints is and has been a matter for the Discipline Committee to determine, within the terms of the above Regulations. The procedures it has adopted and continues to apply are as follows:-

(a) The student is notified of the complaint, the time, and the place of the meeting.

(b) At the meeting the student is informed of the complaint and is asked to speak on them and to then withdraw from the hearing.

(c) Other people (witnesses) are invited to make statements, are questioned by the Committee, and then asked to withdraw from the hearing.

(d) The Committee considers the complaint and the evidence. It may recall the student or the witnesses to clarify any points. It then decides on the case.

(e) The student is recalled and informed of the decision and his right of appeal against the decision. This is confirmed in writing."

The procedure indicates that the applicant was called first and was not present when the witnesses against him gave their evidence later a reversal of the order which a trial would follow. He did not in fact at the time know who those witnesses were because it is the practice at the University not to disclose the names of witnesses. This is said to be because witnesses will not come forward to give evidence unless their identity is kept secret for fear of reprisals from the person accused or his supporters.

The University authorities do not profess to be lawyers or learned in the law. Their task in keeping discipline in a university with so many ethnic groups is an extremely difficult one but that can not excuse disregard for the principles of fair play that are cherished in a democratic country and indeed is entrenched in our Constitution where a person is charged with a serious offence that could lead to his expulsion.

The Committee should in this instance have confined its activities to dealing with a charge of misconduct as defined in the Regulations. It is defined as:-

"5. Misconduct shall include any conduct which is or tends to be subversive of discipline or which tends to bring discredit on the University or students thereof and includes the breach of any Statute, Ordinance, Regulation or Rule of the University."

If the procedure provided by Regulation 6 was followed either the Chairman of the Discipline Committee or the Director of Community Services would have enquired into the complaint against the applicant and the complaint forwarded to the Registrar.

In the instant case where an alleged criminal offence had in fact been committed the matter should have been reported to the police. If the police did not take action or if it did and the applicant had been convicted the Committee could then be directed by its Chairman to inquire whether there had been misconduct by the applicant as defined in Regulation (5) necessitating further action by the Committee.

Whether a fight between two students is 'misconduct' as defined is a matter I do not have to decide but the Committee was not authorised by the regulations to "try" a criminal offence. That is what it purported to do in a manner which is alleged to have been unfair to the applicant.

Mr Maharaj relies on the Privy Council case of University of Ceylon v Fernando (1960) 1 All E.R. 631. This was a case, in some respects like the instant case, where there was an allegation of a breach of natural justice.

The witnesses in that case at the Commission of Inquiry were not questioned in the presence and hearing of the Student who was accused of cheating. Two witnesses were in fact questioned by only one member of the Commission.

The Privy Council held that the fact that the Commission did not tender any witnesses for cross-examination was not a failure to comply with the rules of natural justice but the position might have been different if the Student had asked to cross examine a witness, the woman student who had accused him of cheating, and the Commission refused to allow him to do so.

In Fernando's case the student was not charged with a criminal offence and he was aware that it was the woman student who accused him of cheating. He could have asked to cross-examine her but he did not do so.

In the instant case the applicant may have assumed, quite incorrectly as the Committee's record show, that the student he was alleged to have assaulted might be a witness against him, but he was never told who the witnesses were or what their evidence was. They were interviewed after he had given his explanation. It is apparent from the procedure followed by the Disciplinary Committee that the names of witnesses would not have been disclosed even if he had asked for their names.

Their Lordships in Fernando's case at p.638 quoted with approval a statement from, the judgment of the Privy Council in De Verteuil v. Knaggs (1918) A.C. 557 at p.56:-

"Their Lordships are of opinion that in making such an inquiry there is, apart from special circumstances a duty of giving to any person against whom the complaint is made a fair opportunity to make any relevant statement which he may desire to bring forward and a fair opportunity to correct or control, controvert any relevant statement brought forward to his prejudice." (emphasis added).

I can not see how the inquiry in the instant case can be considered fair. The procedure adopted would permit any person with a grudge against the applicant to make statements to his detriment which the applicant would not be permitted to correct or controvert because he would not know who had made the statements.

The Record of the Committee's proceedings indicate another serious breach. The Committee noted in its record of the proceedings against the applicant:-

"(v) the comment by the Director of Community Services that MALAKAI TUIULUPONA was 'an expert in evasive tactics' when complaints against him have been investigated."

This was a highly prejudicial statement not relevant to the issue of deciding the applicant's guilt. Despite the Committee's apparent ignorance of what constitutes natural justice I would have thought any educated person would have appreciated that the Director's statement should not have been made and when made should have been ignored. What effect it had on the members of the Committee is not known. In a court of law admission of such evidence would result in a conviction being set aside by an appellate court.

While on the subject of the Committee's Record, the Complainant Tevita Ofa is not recorded as being a witness against Malakai. He was charged with an offence and in his defence or explanation he is recorded as having said (inter alia) the following:-

"he would not remember much afterwards except that he saw Hema, Malakai and another Samoan student running after them. He had been punched by both Malakai and Hema."

In considering Malakai's guilt the Committee noted:

"(1) that Tevita Ofa had positively identified Malakai Tuiulupona as the person punching him on Sunday 10 March, 1985."

This is an apparent reference to what Ofa said in his defence.

The Committee chose to ignore the evidence of Apelu Aiavao a sub-warden. Not only was the witness a sub-warden he was also an independent witness whose evidence was entitled to consideration.

He is recorded as saying:

"Aiavao said that on reflection he was not able to say for sure whether Naseri, Enari and Tuiulupona had actually punched Tevita Ofa, he could only identify Hema Vialu (FSM student) as definitely punching Tevita Ofa."

With such evidence no court of law would in my view be "satisfied beyond reasonable doubt," which is the standard required in criminal actions, that Malakai punched Ofa. Acceptance of the Director's highly prejudicial and improper comments in the circumstances could have had the effect of the Committee refusing to accept Malakai's denial that he had punched Ofa.

de Smith in his Judicial Review of Administrative Action. 4th Edition, at p.226 states:-

"it is now clear that disciplinary proceedings in higher educational institutions have to be conducted in conformity with natural justice, provided at least that penalty imposed or liable to be imposed is severe and, probably that not only academic performance is being taken into account. The courts have yet to draw distinctions between situations where the student has a status based on membership of a corporation or contractual rights and situations where he has no such interest. The possibility of recourse to the visitor almost certainly excludes their supervisory jurisdiction where natural justice is in issue. The application of the rules of natural justice has not been confined to such situations: they extend in a modified form to cases where a student is to be refused re-admission to a university for academic failure and the university authorities have a discretion whether or not to readmit him in which case they must he prepared to afford him an opportunity to make representations on his own behalf."

I have considered the case of Glynn v Keele University (1971) 1 W.L.R. 487 one of the cases which Professor de Smith refers to as authority for his statement. In that case there was a clear case of a breach of natural justice because the undergraduate was given no hearing at all.

Pennycuick V-C, in that case experienced considerable difficulty in deciding to refuse to grant an injunction although satisfied there had been a breach of natural justice. The case, however, is authority for the proposition that disciplinary proceedings in higher educational institutions must be conducted in conformity with natural justice.

The applicant was given a hearing but I am satisfied on the facts that in the instant case there was not a fair hearing for the reasons I have referred to earlier in his judgment.

One of the persons who filed an affidavit in support of the Committee's actions was Mr Frank Smith, a warden of the University. He was a former Police Officer. He stated that one of his duties was to investigate complaints. He had often to give undertakings not to disclose names of witnesses because they feared reprisals. Mr Smith supported the practice of not letting an accused student know the identity of the witnesses against him.

Mr Smith, although a former Police Officer, may have had some knowledge of prison investigations where the rules are modified.

The fear of reprisals may in some circumstances justify curtailing the opportunity of the accused to face and cross-examine his accusers de Smith at p. 226 states:-

"In recognition of the state interest in the difficulties of prison administration, the Supreme Court of the United States has given only a limited content to the constitutional right to due process in this context".

The Vice-Chancellor has in his affidavit requested this Court to put its seal of approval on the procedure the Disciplinary Committee has allowed in this case. I appreciate the problems he faces but I am not prepared to treat the University as an institution akin to a prison and relax the rules of natural justice in a case like the instant one where the severity of the sentence could result in the applicant, who is in his final year, not completing his studies. He is a Samoan student, probably here on a Government scholarship, who I am informed has had to return to Samoa because of Fiji's immigration laws.

All law enforcement authorities experience trouble with witnesses. Witnesses who give evidence in our Courts of Law also have to face possible reprisals. Many guilty persons evade punishment because of the fear by witnesses of reprisals or refusal to give evidence for other reasons. Yet it has been said many times that it is better that ten guilty men go free than one innocent man be convicted by failure to give him a fair trial.

It may be of some comfort to the university authorities to appreciate that where universities are concerned and where as in this case no procedure is laid down which the Committee had to follow, the Courts have a discretion whether to give relief to an applicant even if satisfied there has been a breach of natural justice.

The Court will refuse relief in cases where the offence is trivial and punishment light. In the instant case, if the Committee had fined the applicant, he may not have come to this Court. That would probably be the penalty imposed on him by a Court of law.

I do not by my foregoing remarks advocate that the procedure adopted by the Committee should be scrapped and replaced. Each case must be dealt with on its merits. Fernando's case indicates that what might appear to be a breach of natural justice in most other cases is not so in a case such as his. The Privy Council considered there was sufficient compliance with the rules of natural justice in his case.

If the existing procedure into be followed in the future I would suggest the following changes:-

1. When the student attends the meeting he should be informed of the complaint against him and asked if he admits the charge of alleged misconduct.

2. If he denies it he should be asked to retire and not at that stage answer the complaint.

3. Witnesses would then be called and questioned by the Committee.

4. The student should then be recalled and he should be informed of the evidence against him and asked for an explanation.

5. Names of witnesses would not be disclosed at that stage.

6. If however, the student asks to cross-examine any witness he should be allowed to do so.

That procedure has the stamp of approval of the Privy Council in Fernando's case; but in my view where the charge is serious one which could call for his expulsion there can be no relaxation of the rules pertaining to a fair hearing. The answer to the Committee's problem where a criminal offence is concerned is to defer dealing with the case until the police have dealt with the matter.

If the police decline to prosecute and the committee consider the matter serious and have in mind expulsion the student must be given the opportunity of cross-examining witnesses. He would be charged with misconduct tending to be subversive of discipline in that for example he was fighting on the Campus. He should not be charged with a criminal offence which the Committee has no jurisdiction to "try"

The applicant succeeds. I quash the decision of the Disciplinary Committee of the 3rd May, 1985 excluding the applicant from the University for the remainder of 1985. It follows that any later confirmation of that decision is a nullity.

The applicant is to have the costs of this application.

Order for certiorari.

Kermode, J.