In the Matter of the National Judicial Staff Service Appeal Tribunal; Re Jerry Pango and Others [1999] PGDC 25; DC264 (25 November 1999)

DC264

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

In The Matter Of The National Judical Staff Service Appeal Tribunal Pursuant To Section 18 Of The National Judicial Staff Service Act 1998
Complainant

V

In The Matters of Certain Appeals by
Jerry Pango, Petrus Yakapus, & Hai Obe,
All of Tari, Shp.
Defendant

Mt. Hagen: M.M. Pupaka
1999: 25 November, 1999

Counsel
The Appellant Petrus Yakpus in person.
The Appellant Hai Obe in person
The Appellant Jerry Pango not appeared
MR. W. Hagahuno for the NJSS

These three appeals arose out of the same facts. The disciplinary charges laid and the consequent punishments imposed, by the Secretary, are all the same. Then about the same grounds of appeal have been raised in their respective appeals. All that resulted in the three appeals being heard together and this now is the joint decision on the appeals. I should also state at the out set that the appellant Jerry Pango was not available for the hearing. He had left no reasons or explanations for his absence but his absence in no way has amounted to any injustice either to himself or any one else and the Tribunal’s decision would only be fair and with adequate regard to his absence.

The facts are these:

Sometime on or around 15/11/94 the Appellants were charged for having stolen and or having being in possession of some liquor – "Gold Cups" – which incidentally were court exhibits. They were convicted of the offence of which they were charged with by the Tari District Court on the 15/11/94. The Appellants Hai Obe and Petrus Yakapus were then Security Guards employed by the NJSS at Tari. The Appellant Jerry Pango was then the Clerk of Court at the Tari District Court. The Appellants Hai Obe and Petrus Yakapus were charged and convicted of being in possession of stolen property and were fined K50.00. The appellant Jerry Pango was charged for stealing and after conviction fined K100.00. Incidentally all Appellants had pleaded guilty to their respective charges before the Tari District Court.

Then based on these convictions the Secretary of the NJSS had, on the 09/05/96, charged the Appellants with a disciplinary offence under the NJSS Act 1987. They were also suspended without pay at about the same time. The Secretary had finally made recommendation for the appellants all to be dismissed from the NJSS. The Appellants appealed the Secretary’s decision. Then due to lengthy delays in the hearing of these appeals the Secretary lifted the appellant's suspension and allowed them to resume duties pending the hearing of their appeals against the recommendations for dismissal. The Appellants Hai Obe and Petrus Yakapus were allowed to resume duties on the 15/08/97. It is not known when Jerry Pango was allowed to resume duties but it does seem that has he resumed duties at the Kagua Court House as the Clerk of Court at Kagua. (There is now another Clerk of Court at Tari).

All three (3) appellants have raised and asserted innocence as the ground of their appeals now before this Tribunal.

First of all I must say that that ground, and line of argument, for the purposes of these appeals at least, is totally misconceived and a absurd nonsense. For one they have not appealed against the District Court Convictions, and it does seem their respective convictions were based on a plea of guilty each and severally entered upon the charges that were laid by the police at Tari.

Their respective convictions are now matters of record and that is just that. During the hearing of these appeals I quite painstakingly explained to all concerned that this Tribunal is bound by the Tari District Court convictions and can only accept the convictions as a matter of public record. I can only repeat that here. Then too, this Tribunal can not delve into the process by which they were convicted, and therefore can not, either consciously or otherwise, set aside, nullify, or in any way dissolved the force and effect of their respective convictions. Put simply, their convictions are there forever, until and unless set aside properly by the National Court after a proper appeal.

Secondly the Secretary only took into account these appellant’s certificates of convictions. I find nothing wrong with that. However, the Appellants Hi Ope, (who it does seems is a total illiterate), and Petrus Yakapus were security guards. They had no excess to the court exhibits kept at the Tari District Court House. They both say they were given "Gold Cups" or mixtures of those staff, by the Appellant Jerry Pango, the latter being the Clerk of Court who had keys to appropriate places and rooms at the said court house. And quite properly, the Clerk was charged with being in possession of stolen property with stealing and fined K100.00 where as the two security guards were charged and fined K50.00 each. I make that much out of their respective Certificates of Convictions. After having charged these Appellants, and after having considered their replies and all other relevant reports available the Secretary proceeded to recommend dismissal for all three appellants on the basis that the "charge(s) that you did steal court exhibits (Gold Cup – alcohol) drank them all has been sustained" (sic).

Considering that all three (3) were charged by the Secretary similarly and then punished similarly, and further considering the fact that the three were charged by the Tari Police quite differently and the District Court of Tari imposed different penalties, (vis-a-vis the Clerk of Court and the Security Guards), I do not accept that the Secretary’s joint decision (to refer for and recommend dismissal) is strictly proper. The Appellant’s Hai Obe and Petrus Yakapus (being the security guards) should have been dealt with a clear and apparent degree of difference to Jerry Pango, the Clerk of Court. Not only the punishment imposed would be different, but at least clearly seen to be different. If it came down to that, the Clerk of Court had a higher level of responsibility to discharge in the NJSS, and he was in total charge and control of the two (2) Security Guards at the relevant times.

Having considered all the circumstances of these appeals, I consider the appellants should have been charged, considered and punished differently. The Secretary failed to do that and I must find fault with that failure. For that reason I would, in the exercise of my discretion, vary the decision of the Secretary imposed on the Appellants Hai Ope and Petrus Yakapus. I consider their actions and conduct were only subservient to that of Jerry Pango. I consider further that the Secretary should have imposed a punishment other than a recommendation for dismissal on these two appellants Hai Obe and Petrus Yakapus.

I therefore vary the Secretary’s decision in respect of these two (2) Appellants and imposed a lesser punishment that these two (2) officers’ pay be reduced in accordance with Section 16(5)(b) of the NJSS Act 1987. That effectively means the pay they would from henceforth draw would be on salary point lower than the level of pay they were receiving at the time of the offence. I decline to impose any of the other punishments under Section 16 (5) (a)(c) and (d). The Secretary had opted for the punishment under Section 16(5)(c) which, as I have said, I disagree with under the circumstances.

For all the reasons I have varied the punishment imposed by the Secretary on the Appellants Hai Obe and Petrus Yakapus, I must also decline to find fault with the penalty imposed on Jerry Pango, the Clerk of Court. He was a Senior Officer. He was the Clerk of Court at Tari. He failed not only to refrain from publicly disgracing himself and the NJSS at the relevant time, but he also committed an offence in the process, and quite literally against the NJSS. Further he seemingly also got the other two officers who were working under him involved in his activities for which he not only was punished by the Tari District Court, but also the Secretary. I say again I find nothing wrong with the Secretary’s decision to recommend him to the Judicial Council for dismissal. I can only confirm the Secretary’s decision and repeat his recommendation to the Judicial Council.

Ergo the formal orders of this Tribunal after the hearing of these appeals are as follows:-

(a) The penalty imposed by the Secretary, dated 26/04/96, on the Appellants Hai Obe and Petrus Yakapus by the Secretary is hereby varied and these Tribunal Orders that Hai Obe’s and Petrus Yakapus’s pay be reduced in accordance with Section 16(5)(b) of the NJSS Act 1987.

(b) The penalty of recommendation for dismissal imposed upon Jerry Pango by the Secretary on the 26/04/96 is confirmed and the said Jerry Pango’s Appeal herein is dismissed.

Hai Obe & Petrus Yakapus: Complainants
W. Hagahuno for Njss: Defendants