In re Gallus Yumbui [2006] PGLT 3; N3993 (31 October 2006)

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PAPUA NEW GUINEA
IN THE MATTER OF A REFERENCE BY THE PUBLIC PROSECUTOR PURSUANT TO SECTION 27 (2) OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP ("the Organic Law")

HON. JUSTICE LAY - CHAIRMAN
MR. IOVA GEITA - PRINCIPAL MAGISTRATE - MEMBER
MR. LAWRENCE KANGWIA -SENIOR MAGISTRATE – MEMBER a Leadership Tribunal appointed pursuant to section 27 (7) (e) of the Organic Law

LEADERSHIP TRIBUNAL-CONSTITUTION s27-ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP s4,5, use of a motor vehicle purchased with Government funds-whether misconduct in office.

The Leader had 6 allegations of misconduct in office laid against him under Constitution s.27 and the Organic Law on the Duties and Responsibilities of Leadership (OLDRL or "the Organic Law") s.4, s.5 and s.12. The Leader applied for and received funding from the National Gaming Control Board to buy an ambulance vehicle for his electorate, Wosera-Gawi in the East Sepik Province. The vehicle was delivered in Port Moresby and kept there for seven (7) months. The Leader used the vehicle extensively during that period. The vehicle was then transferred to the Leader's electorate, where the Leader had nothing further to do with it.

1. BY THE TRIBUNAL: On 16 November 2004 The Ombudsman Commission of Papua New Guinea referred the Honorable Gallus Yumbui ("the Leader") to the Public Prosecutor, with its reasons for doing so. On 4 November 2005, the Chief Justice appointed this Tribunal pursuant to the provisions of section 27 (7) (e) of the Organic Law. On the 7 December 2005, the Public Prosecutor referred six allegations against the Leader for examination by this Leadership Tribunal.

1) that from November 2000 to August 2001 the Leader failed to carry out the obligations imposed by section 27 (1) of the Constitution;

by conducting himself in his public life and in his associations with other persons in such a way that he:

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

b) demeaned his offices and positions as member of the Parliament for Wosera-Gawi Open and member of the East Sepik Provincial Assembly; and

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

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

AND FURTHERMORE the Leader failed to carry out the obligations imposed by section 27(2) of the Constitution;

BY engaging in an activity that might be expected to give rise to doubt in the public mind as to whether he was carrying out the duty imposed by section 27 (1) of the Constitution;

THEREBY being guilty of misconduct in office under section 27 (5) (b) of the Constitution.

THAT in November 2000 the Leader, except as specifically authorized by law, directly or indirectly asked for and accepted a benefit on behalf of himself and/or his associates;

AND FURTHERMORE except in the course of and for the purpose of his official duties or official position used his official position for the benefit of himself and/or his associates;

IN THAT he used his official position, being member for Wosera-Gawi Open Electorate and a member of the East Sepik Provincial Assembly, whereby, without lawful authority, he requested and accepted public money from the National Gaming Control Board in the form of a cheque for K85,718.60 payable to "Ela Motors Limited" and subsequently negotiated with Ela Motors for the purchase of a motor vehicle namely, Toyota Land Cruiser 10 seater registration number BBE-534 which he used as his private vehicle;

THEREBY being guilty of misconduct in office under section 5 (1) of the Organic Law on the Duties and Responsibilities of Leadership.

THAT in November 2000 the Leader accepted benefits from a person (National Gaming Control Board) without exemption from liability by the Ombudsman Commission;

IN THAT he requested and accepted a cheque for K85, 718.60 payable to Ela Motors Ltd. from the Gaming Board, and subsequently negotiated the cheque with Ela Motors for the purchase of a vehicle namely, Toyota Land Cruiser 10 seater registration number BBE-534 which he used for his own personal benefit and/or the benefit of his associates;

THEREBY being guilty of misconduct in office under section 12 (1) of the Organic Law on the Duties and Responsibilities of Leadership.

THAT from November 2000 to August 2001 the Leader intentionally applied money forming part of a fund under the control of Papua New Guinea to purposes to which it could not be applied;

IN THAT having accepted public money from the National Gaming Control Board, in the form of a cheque for K 85,718.60 payable to "Ela Motors limited" without being specifically authorized by law, he allowed all of the proceeds of that cheque to be applied to the purchase of a motor vehicle, Toyota Land Cruiser 10 seater registration number BBE-534 which used for (sic) his personal benefit and/or the benefit of his associates;

THEREBY being guilty of misconduct in office under section 13 (a) of the Organic Law on the Duties and Responsibilities of Leadership.

THAT between 2000 and 2002 the Leader failed to carry out the obligations imposed by section 27 (1) of the Constitution;

BY conducting himself in his public life and in his associations with other persons in such a way that he:

AND FURTHERMORE the Leader failed to carry out the obligations imposed by section 27 (2) of the Constitution;

BY using his office for personal gain and entering into transactions that might be expected to give rise to doubt in the public mind as to whether he was carrying out the duty imposed by section 27 (1) of the Constitution;

IN THAT he knowingly, recklessly or negligently omitted to supply to the Ombudsman Commission in his annual statements for the periods 2000/2001 and 2001/2002 assets (including money and personal property in the form vehicle, Toyota Land Cruiser 10 seater registration number BBE-534) that had come into his possession and control as a result of receiving the cheque for K 85,718.60 from the National Gaming Control Board;

THEREBY being guilty of misconduct in office under section 27 (5) (b) of the Constitution.

THAT between 2000 and 2002 the Leader knowingly, recklessly or negligently gave annual statements to the Ombudsman Commission as required under section 4 (1) of the Organic Law on the Duties and Responsibilities of Leadership which were incomplete in material particular;

IN THAT in his annual statement periods 2000/2001 and 2001/2002 he failed to set out and declare details of his receipt from the National Gaming Control Board of cheque number 632323 for K 85, 718.60 which details should have been set out under item 4 (Assets); item 6 (Income); item 10 (Business Transactions); and/or item 11 (Gifts) of his annual statements.

AND FURTHERMORE in his annual statements for periods 2000/2001 and 2001/2002 the Leader failed to set out and declare details of his receipt of the vehicle Toyota Land Cruiser 10 seater registration number BBE-534 which he purchased using the proceeds of the National Gaming Control Board cheque, which details should have been set out under item 4 (Assets); item 10 (Business Transactions); and/or item 11 (Gifts) of his annual statements;

THEREBY being guilty of misconduct in office under section 4 (6) (b) of the Organic Law on the Duties and Responsibilities of Leadership.

4. Counsel advised that they were agreed that there would only be two issues for determination (1) whether the vehicle in issue, when it was in Port Moresby, was used by the Leader for his own purpose and his associates purposes; and (2) when the vehicle was eventually delivered to his electorate, whether that vehicle was used for the purpose it was purchased for or was it used by the Leader for his purposes and his associates purposes.

5. The following facts were agreed by the Public Prosecutor and Counsel for the Leader, counsel for the Leader having advised the tribunal that the Leader had sighted the statement of agreed facts and had given instructions for his counsel to sign it as consenting on his behalf:

Date of Cheque	22 November 2000
Drawee Bank	Bank of South Pacific Ltd. Gordons 0885 and 951
Cheque Number	632323
Drawer	National Gaming Control Board
Name of account	National Gaming Control Board Operating Account
Account number	100006125
Payee	Ela Motors Ltd.
Amount	K 85,718.60
Endorsement	Not available

Date of Receipt	23.11.00
Receipt No.	PB 8568
Deposit reference	21 848
Number of account	666923
Customer	Gallus Yumbui
Deal reference	P16794
Invoice No.	P1 6794
Amount	K 85,718.60

7. The typed Statement of Agreed Facts signed by counsel has been marked Exhibit 2 P.

8. The Public Prosecutor and counsel for the Leader also agreed to admit by consent a series of documents contained in the Ombudsman Commission Statement of Reasons being documents marked in the Statement of Reasons as exhibits numbered P1 to P6, P9, P10, P16, P18, P19 to P25. Full particulars of the documents are contained in the document entitled List of Exhibits Accompanying the Statement of Agreed Facts, which has been signed by counsel and marked Exhibit 3 P. Counsel for the Leader advised the tribunal that his client Leader had perused the list of documents and had instructed counsel to sign it.

9. Documents obtained by the Ombudsman Commission in the course of an investigation are in the same class as statements given to the Ombudsman Commission, and thus not admissible in these proceedings as evidence: Organic Law s21(6).

"By virtue of s.21(6) there is no discretion in the tribunal, of its own volition, to admit or accept statements of persons or documents in a Statement of Reasons as "evidence" except - (1) where the Leader expressly consents to the admission of the document in "evidence" before the tribunal, or (2) the tribunal admits a document sought to be tendered by the prosecution. If the Leader has had the opportunity to voice objection to the document or documents and consents to their tender the Tribunal may accept them in evidence":.: Mao Zeming v Hinchliffe J. and others N2998 (Injia D.C.J.).

10. As the Leader has had the opportunity to voice any objection to admission into evidence of the documents in Exhibit 3 P., he has made no objection and through his counsel consents to their admission, those documents were admitted into evidence with Leader's express consent.

11. The uncontradicted evidence is that the Leader took delivery of the vehicle on the 15 of January 2001 and on the 16 of January 2001 he drove it to Murray Barracks to see Chief Petty Officer Theo Makun about having the vehicle shipped to Wewak by the Defence Force at no cost. The vehicle was with Mr. Makun from sometime after the 16 of January 2001, probably from the 19 of January, until it was given into the custody of Father Richard Sangu on the 8 of February 2001, after which it was never returned to Mr. Makun. During the time the vehicle was with Mr. Makun, he drove out with it approximately twice a week, either to the chapel within the barracks (a distance of 1 km) or to the Korobosea Defense Force flats. The Leader told Mr. Makun that the vehicle was for Kosingo hospital.

12. The vehicle was in the custody of Father Richard Sangu between the 8 and 13 February 2001 and during that period the vehicle drove to De La Salle high school on the 8 February, from the high school to Ela Beach and back to the high school on the 9 February, from the high school to St. Mary's Cathedral Port Moresby on the 10 February and back again to the high school and on the 13 February from the high school to some point of delivery to the Leader in greater Port Moresby, but the evidence is unclear as to precisely where. It might have been used on the 11 by other priests when Father Sangu was out of Port Moresby for the day. The Leader told Fr. Sangu that the vehicle was obtained as an ambulance for Kosingo and on his return to the District Fr. Sangu told this news to the people.

13. George Teliki, then District Administrator, gave evidence that he went to Port Moresby in 2001 with four council presidents, at the request of the Leader, for the holding of a Joint District Planning and Budget Priority Committee meeting which was held on the 15 of May 2001. He and the presidents were in Port Moresby for four days and during that time they were given the use of BBE 534.

14. Robert Yuwen gave evidence that he is from Jipako village in West Wosera in the Leader's electorate. From June 2000 to June 2001 he was employed in Port Moresby. He left Port Moresby in March 2002. While in Port Moresby he was living at Waigani Heights. He met the Leader because they were from the same area, although they are not related. The Leader came to visit him a couple of times at the house. On those occasions the Leader was driving BBE534. The Leader left BBE534 with him between February and April 2001 whilst the Leader was away in his electorate. Prior to this the Leader stayed with Mr. Yuwen in his residence for a short time and during that time the Leader was using BBE534. Mr. Yuwen used the vehicle for approximately one month during February/April because his employer's vehicle allocated to him had a problem. He used the vehicle to go to and from work and to go shopping at Maloro, Manu Auto Port, Koki, Stop-n-Shop and on 3 occasions he went to Brown River. He did not mention this to the Leader. The Leader told him that he had previously left the car with Theo Makun. Mr. Yuwen visited Theo Makun on one occasion but does not recall if he saw the vehicle on those occasions. After the Leader's return from the electorate he re-took possession of the vehicle. He again stayed with Mr. Yuwen for a period and during that time was using BBE534. After the Leader ceased residing with Mr. Yuwen he visited the witness again and on some of those visits he was driving BBE534. The witness never saw the Leader driving any other vehicle besides BBE534. The Leader told him that he had arranged with Theo Makun for the vehicle to be shipped to the electorate.

15. The Leader's attempts to have the vehicle shipped free of charge to Wewak by the Defence force came to an end in May 2001 when the Defence force cancelled its community assistance program.

16. The vehicle was inspected by the Ombudsman Commission's office in Port Moresby on the 20 of July 2001 and shipped to Wewak on or about first of August 2001, as the agreed facts show.

17. The Leader's evidence is that, apart from the approximately 5 times he drove the vehicle down to Lancrom naval base, the vehicle was mostly at Murray barracks where he had left it with Mr. Makun. This of course is contradicted by, Mr. Makun, who said the vehicle had not been with him after mid-February 2001, and by Mr. Yuwen.

18. Mr.Ashley Huston, National Service Manager for Ela Motors with 19 years experience in the automotive industry gave evidence that in his experience the average annual usage of a motor vehicle in Port Moresby was between 15,000 km and 22,000 km. The latter figure applying to commercial vehicles which receive very heavy usage. His opinion was that the almost 12000 km usage of the vehicle in this case over a period of six months, constituted heavy usage.

19. It does not take a great deal of analysis to realize that between the 15 of January 2001 when the Leader took delivery of the vehicle, and 20 July 2001 when the Ombudsman Commission read the odometer, there are 186 days. 186 divided into the 11,967 km odometer reading, less the 53 km on the odometer at delivery, gives an average daily use for the vehicle of 64.05 km.

20. For arguments sake, applying the daily average from the 15 of January to the 13 of February, plus another four days usage by Mr. Teliki and five days when the leader or Mr. Makun drove the vehicle to Lancrom and a month when Mr. Yuwen drove it, is a total of 4419.45 km. That leaves 7547.55 km unexplained very heavy usage during the time that the Leader has agreed, and the evidence confirms he retained usage and control of the vehicle in Port Moresby. We find the Leader was in fact personally using the vehicle during the period that it ran up the 'unexplained' kilometres.

21. The vehicle was shipped from Port Moresby to Wewak on or about the 1 August 2001 and would have arrived in Wewak a few days later. The Leader's uncontradicted evidence is that at that time the road to Kosingo was extremely bad and delivery was delayed until the 14 September 2001. On the 14 September 2001 in Kosingo in the Wosera-Gawi electorate there was a big gathering, speeches were made by the Leader, the then Minister for Agriculture, Simeon Wai, and the parish priest Fr Sangu, and the vehicle was handed over to the parish priest and the health board of the aid post/health Centre.

22. At the presentation the Leader told the people that he had obtained an ambulance for them, to assist neighbouring districts, to look after it properly, to use it at the health centre and under the control of the priest and the health board for the health centre, for health centre purposes. The Leader took the view that was for the community to decide how to use the vehicle. The vehicle had no signs painted on it to show that it was an ambulance.

23. We find that the usage of the vehicle was under the direct control of the chairman of the health board. The health board consisted of persons elected from local leaders from various villages in the Kosingo area. The vehicle was kept in a bush material shed made for it near the health centre. Sister Mary, an employee of the aid post, gave evidence that at night the vehicle was parked near the priest's house for security, because the vehicle shed had no doors. The vehicle could be seen from Sister Mary's house when parked at the priest's house.

24. When the vehicle was presented at the 14 September 2001 ceremony, Father Richard said in his speech that they had no resources from which to maintain the vehicle. The health board found that this was true and after a period of about 3 months decided that, when the vehicle was undertaking a journey for the aid post, such as collecting medicines to supply the aid post, or returning from delivery of a patient to another health facility, it could carry passengers who would make a contribution to the running and upkeep of the vehicle. Other contributions were made by the community in cash and kind, in the form of coffee and cocoa, for the upkeep of the vehicle.

25. The vehicle was seen on various occasions carrying cargo and passengers. Paul Palik, a Revival Church pastor from Yambiko village saw it so used and was a passenger once with 6 bags of cocoa destined for Maprik. John Petau, ward member from Golakam village in North Wosera observed the vehicle being used as a PMV to carry store goods, coffee and cocoa and passengers. Albert Salkut from Sarkim village, about 5km from the Leader's village has seen the vehicle used as a PMV by Leader's village people. William Bakamu has observed the vehicle being used by the Leader's community at Wapindumaka. Former District Administrator George Teliki prepared a report on the electorate after he was replaced in which he was critical of the use of the vehicle.

26. On one occasion Ombudsman Commission investigators followed the vehicle carrying passengers from Maprik to Wewak and saw that it over-nighted at the Leader's residence.

27. In the report prepared by former District Administrator Teliki there was an allegation that the vehicle had been used for distribution of the Leader's election posters in the electorate in 2002. In examination Mr. Teliki said the information came from William Bakamu. In examination of William Bakamu he said the information came from Mr. Teliki's report. We conclude that there is no evidence that the vehicle was ever used for the distribution of the Leader's election posters. The report most likely came from William Bakamu and both he and Mr Teliki are motivated by a certain amount of ill will towards the Leader.

Whether the Leader Had the Vehicle under His Direction or Control in the East Sepik

28. There is no evidence that the vehicle was ever under the control or direction of the Leader or that he used the vehicle, directly or indirectly, for the benefit of himself or his family, once the vehicle was delivered to Kosingo. No one gave evidence that they had ever seen the Leader or any of his family in the vehicle, or that they knew of any occasion when the Leader or any of his family gave directions in respect of the use of the vehicle. Our view is that although there is some evidence that the vehicle was used by members of the Leader's village, no one suggests that they had exclusive use or control or any more usage than other villages in the Kosingo area. We accept the evidence that the vehicle was under control of the Kosingo aid post health committee; although we also find that the drivers of the vehicle exercised a wide discretion on whether passengers or cargo would be carried. We also accept the evidence of Mara Aili, Manager, Lands Division, Wosera-Gawi District, that the vehicle provided a valuable service to a remote and poorly served community. We do not find that the vehicle spent the night at the Leader's residence in Wewak evidence of anything more than the constituents of his electorate taking full advantage of all benefits which could be obtained from him, including over night accommodation.

29. We accept the Leader's evidence that the purchase and initial registration of the vehicle was largely arranged between the National Gaming Control Board, Ela Motors Ltd., and the Leader's Parliamentary staff, without a great deal of direct involvement by the Leader. The vehicle was registered in the Leader's name in January 2001 by Ela Motors Ltd on the basis that it was the Leader who had placed the order. In April 2001 the Leader corrected the position of registration by transferring the registration to the parish priest Kosingo Parish.

30. We also accept the evidence of Francis Yumbui, and Vitus Niavi that registration of the vehicle in the Leader's name in Wewak in December 2002 came about in the following way, without any direction or authority from the Leader:

1. Francis Yumbui, driver (and no relation to the Leader) and Camillus Sasi, chairman of the health board, went to the police station in Wewak to register the vehicle. They were directed to go to Ela Motors for a safety inspection.

2. At Ela Motors Francis Yumbui was asked by the Ela Motors staff member "in whose name the vehicle would be registered" and he replied "I do not know, the vehicle was given by the Member to Kosingo health centre."

3. When the vehicle was taken back to the police station after the Ela motors inspection, Constable Vitus Niavi filled out his own inspection report, following the information which was contained in the Ela Motors inspection report, which was that the owner of the vehicle was Honorable Gallas Yumbui MP.

4. Following the usual practice the registering staff registered the vehicle in the name shown on the inspection report as the name of the owner.

5. Constable Vitus advised Francis and Camillus that on next registering the vehicle they would have to change the name but did not consider the matter of sufficient significance to insist upon an immediate correction.

31. We accept that the Leader had no input into these Wewak events nor any knowledge of them until they came to light as a consequence of the Ombudsman Commission investigation.

32. As a correlative of those findings, we find that Camillus Sasi is mistaken in believing that he was elected chairman of the health board in 2003, and that the vehicle was involved in accident in 2004, as he said in his evidence. We find he was elected in 2002 for these reasons:

1. Both constable Vitus and Francis identify Camillus as being present at the registration process in December 2002;

2. He could not have been present at a registration in 2003 because the vehicle was off the road having been involved in a serious accident in May 2003 (see exhibit 13P-Road Accident Report), prior to the due date for registration, and remained off the road;

3. The only explanation for his being present at the registration is that he was chairman of the health board, as Francis asserts.

33. A great deal of evidence was given on the status of the Kosingo Health Centre, whether it was technically a health centre or just an aid post, whether it was or was not completed in 2000, where it was located and whether it was a Government or Catholic operated service.

34. Our view is that the precise details are not relevant to the issues. We are satisfied that there was a health service of some description in the Kosingo area, probably from 1997, and at all relevant times and that is all that really matters on that issue. It has not been established that an ambulance was acquired for a non existent service. We prefer the evidence of Rueben Maiwax, Mara Aila, Steven Maninga and Mary Malalaita to that of George Teliki in regard to the existence of an aid post at Kosingo for several reasons. First we consider that there was a degree of ill will towards the Leader by George Teliki which was evidenced in the manner in which he gave his evidence. Secondly we do not consider that he was in a position to have the detailed knowledge of what was occurring in the sub-district and Rueben Maiwax, Mara Aila, Steven Maninga and Mary Malalaita were in such a position.

35. In that context we are satisfied that the Ombusdman Investigators Gabe Hekoi and Philip Morris did not visit Kosingo, they only thought that they did. It is clear from the evidence that they only spoke to 2 people in the Kosingo Area, Paul Palik and a nursing sister. It is clear from Paul Palik's evidence that they spoke to him and the nursing sister, at Wambisa Health Centre. They did not go on to the health facility at Kosingo Catholic Mission station because of the bad road. They went from Wambisa Health Centre to Maprik, and seeing the vehicle there, following it back to Wewak.

36. In summary the view we take of the facts is that the Leader applied to the Gaming Board for funds to purchase ambulances for his electorate, he was allocated funds for one ambulance, at all times he fully intended that the vehicle would be used as an ambulance in the electorate. He told Fr Sangu, Mr. Makun and Mr. Yuwen as much and that was passed on to the people in the electorate as we are sure the Leader knew it would be. We think it highly unlikely that a Member intending to be re-elected would and did consciously plan to cheat the people in such a blatant way as to buy a vehicle, inform the electorate that it was on its way for their service and then deliberately not send it so as to enjoy it as his personal vehicle on a permanent basis. Our view is that first the Leader was careless of the significance of the vehicle being in his possession at all. There was no good reason for it to be in his possession and it is not the role of elected members of the Parliament to be custodians of assets of the State or to use those assets, except for those assets allocated for their use. Upon the break down of the Leader's arrangements with Mr. Makun for the vehicle to be transported to Wewak by the Defence Force marine element, he became careless to the need to expeditiously execute his plan. There is strong evidence that the Leader had at his disposal hundred's of thousands of kina, more than ample funds to pay for the freighting of the vehicle to Wewak at a cost of around K3,000.

37. We find that reasons of his personal convenience over rode and took priority to the desire to provide a vehicle to the Kosingo Aid Post. The Leader used the vehicle extensively for personal purposes in Port Moresby. He treated the vehicle as a personal possession and convenience. We do not accept the Leader's evidence that he mostly used his own vehicle and only used BBE534 on 5 occasions to go to Lancron to check on shipping progress. In submissions counsel for the Leader has tried to extend that evidence by suggesting that it related to 5 times per week. We reject the Leader's evidence and the submission as not being consistent with the truth as disclosed by the Leader's evidence, the agreed facts and the evidence of other witnesses called by both the Prosecutor and the Leader. Mr. Yuwen's evidence was particularly telling in confirming what the agreed facts implied, that the Leader personally used the vehicle as his own personal transport and was not seen using any other vehicle.

38. It was not until the Ombudsman Commission inspected the vehicle on 20 July 2001 that Leader was again galvanized into action resulting in the vehicle being shipped in early August. Without that intervention, we suspect, although do not find as a fact, that the personal use of the vehicle would have gone on until some more convenient time for the Leader from either a political or personal point of view, to relinquish the vehicle for is intended purposes.

39. After the vehicle was presented at Kosingo the Leader had no more to do with its use or administration.

40. On the issue of onus of proof the Tribunal must be satisfied on the evidence beyond the balance of probabilities having regard to the very serious nature of the proceedings; it should be close to but not as high as the standard of beyond reasonable doubt applied in criminal proceedings: In the Matter of James Mopio [1981] PNGLR 416 at 420-421.

41. The Tribunals powers are investigative. They are not simply to hear the evidence produced by the parties but the Tribunal may call for evidence to be produced: Public Prosecutor and Honourable Michael Pondros, N426 (Gajewicz J, Lofena and Toreken MM) cf: Public Prosecutor and the Honorable Michael Nali, N2398 (Gavara-Nanu J, Manue and Monulouk SM). However, "...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 OLDRL, 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. Thus the onus is primarily on the leader to invoke s.21(6) to exclude documents in the Statement of Reasons": Mao Zeming v Hinchliffe & Ors N2998 (Injia DCJ) at p14.

42. The fact that the proceedings have tended to be conducted in an adversarial manner has led to the view that there is an onus of proof on the Public Prosecutor: See Leadership Tribunal appointed for the Honorable Andrew Kumbakor member for Nuku N2363 (Injia D.C.J. as he now is, L. Kangwia and D. Maliku and if that onus is not discharged then the Leader can make a "no case" submission: See Public Prosecutor and the Honorable Michael Nali, N2398 (Gavara-Nanu J, Manue and Monulouk SM).

43. In this Tribunal, counsel for the Leader has submitted that as a logical consequence of the reasoning above, in deciding whether the Leader is guilty as alleged, the Tribunal should confine itself to examination of the evidence adduced by the Public Prosecutor. We do not consider this to be a correct submission. It is inconsistent with the investigative role given to the Tribunal. In our view the Tribunal can rely upon all of the evidence before it, to reach its conclusions. The Tribunal would be failing in its Constitutional duty by excluding relevant evidence before it unless the evidence was obtained in some manner which made it unreliable or unfair to the Leader.

44. We reserve our concluded views on whether it is proper to make a no case submission as the issue does not arise for consideration here. However, it seems to us that such an application might be refused on the basis that the application itself has demonstrated deficiencies in the knowledge of the Tribunal which it has the power and the duty to make good by directing the calling of further evidence, before reaching a conclusion. Secondly, the right to make the application would depend upon whether the onus of proof borne by the Prosecutor was a legal or a practical one. The right to make a 'no case' submission only arises when the onus is a legal one. In the AIJA occasional paper Inquisitorial Processes in Australian Tribunals by Narelle Bedford and Robin Creyke the authors say (at p59)

"As has been mentioned, the issue of the onus in Tribunal proceedings is often not dealt with explicitly in the legislation establishing the tribunal. Despite the absence of this statutory indicator, the general rule, as discussed in Part V of this paper, is that no party bears a legal onus of proof in Tribunal proceedings. It has long been held, however, that this principle does not preclude there being a practical onus on one or other party. The intensity of the practical onus will depend on how adversarial, in practice, is the proceedings. (Authorities referred to omitted.) "

45. It seems to us therefore that at the appropriate time it may be necessary to enquire whether the views expressed in the cases cited above on onus of proof and 'no case' submissions, are correct.

46. We note also that the counsel for the Leader address submissions on the effect of circumstantial evidence. We have not found it necessary to address that issue because all of the findings of fact we have made are based on direct evidence and not on hypotheses derived from inferences available on circumstantial evidence.

47. A number of the charges allege that the cheque raised to Ela Motors for purchase of the ambulance could not have been so lawfully raised and therefore the Leader asked for funds of PNG to be unlawfully applied. That argument stems from the provisions of the Gaming Machine Act. The Prosecutors submissions on the point are as follows:

"At the relevant time Section 67(2) (b) of the Act provided for the opening and operation by Gaming Board of trust accounts in the names of each province (and the National Capital District ) in which gaming machines are located. A certain percentage of the profits that operators derived from operating gaming machines were required to be deposited into these trust accounts each month. Section 67(2)(a) of the Act provided for the opening of a trust account on behalf of the Department of Finance and Treasury. A certain percentage of the profits that operators derive from operating gaming machines were required to be deposited into the trust account each month. Section 68 of the Act provided that at the end of each financial year the Minister for Finance and Treasury must make payments out of the Department of Finance and Treasury's trust account. Such payments are as directed by the National Executive Council but may only be made:

Profits from the operation of gaming machines could therefore only be distributed by the Gaming Board for public purposes in particular provinces (or the National Capital District). Section 67 of the Act was amended by the Gaming Machine (Amendment) Act 1995. Subsequently Section 67 was repealed and replaced by Gaming Machine (Budget Provisions 1997) Act (No. 32 of 1996) which inserted section 67A and 67B. Section 67 A and 67 B were repealed and replaced by Gaming Machine (Budget Provision No.21 of 1997) Act (No. 62 of 1996) Section 5 and 6 respectively. Section 68 of Gaming Machine Act was repealed and replaced by the Gaming Machine (Amendment) Act 2002. Section 5 of the latter Act required moneys paid into the Community Benefit Account to be paid into the Consolidated Revenue Fund. The effect of repeal and replacing of Section 67 are immaterial to the allegations against the Leader. The Gaming Machining (Amendment ) Act 2002 Section 5 changes the position of the law in a material way. However, it is not expressed to be retrospective in operation and does not materially affect the allegations referred."

48. The inference to be drawn from such a submission is that if it is shown that East Sepik was not a Province with gaming machines or if it is shown that there was no relevant trust account from which funds could be lawfully drawn or expenditure was for a purpose not authorise by the Gaming Machine Act then a request for such expenditure would be improper. We deal with this submission below.

49. Another issue on which the Public Prosecutor has placed considerable emphasis in his submissions, is the rule in Browne v Dunn [1893] 6 R 67 (HL) and he made reference to Allied Pastoral Holdings Proprietor Ltd. v Commissioner of Taxation [1983] 1 NSWLR 1 at p.16. Reference was also made to a number of Papua New Guinea cases in which reliance has been placed on the rule. The essence of the rule is that the accused's case should be put to the prosecution witness in cross examination. It is desirable that what the accused relies upon be put or suggested to the prosecution witnesses so that they can refute or explain.

50. The application of this rule to inquisitorial tribunals has been doubted. In the case of Re Ruddock Ex parte Applicant S154/2002, [2003] HCA 60; 201 ALR 437, two justices of the High Court of Australia ( Gummow and Hayden JJ) commented:

"... the rule in Browne V. Dunn... has no application to proceedings in the Tribunal. Those proceedings are not adversarial, but inquisitorial; the Tribunal is not in the position of a contradictor of the case being advance by the applicant. The Tribunal Member conducting the inquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair."

51. Those comments were made in respect of a State administrative tribunal. In those tribunals the applicants is not always assisted by counsel. "... the tribunal engages a substantial registry staff to assist parties and to perform work which would ordinarily be done by solicitors in courts of law.": See Ogawa and University of Melbourne [2005] VCAT 197 pr Morris J at 21. Those circumstances are quite different to the circumstances in which this tribunal is operating. However, that is not to say that there is no relevance in those comments to this inquisitorial tribunal.

52. The reason that in the ordinary adversarial court proceedings, a defendant or respondent can and is required to put his case in cross examination in the plaintiff's case, is that pleadings and particulars, or in criminal proceedings, Committal Proceedings, have fully appraised the defendant of the material principal particulars of the plaintiff or prosecutor's case including what the witnesses will say. As a consequence, counsel for the defendant has had full opportunity to take instructions and statements from witnesses relevant to the issues and the manner in which the plaintiff or prosecution proposes to prove those issues and be in a position to put the defence case to the plaintiff's witnesses.

53. In these proceedings, at the suggestion of the Public Prosecutor, directions were given for the exchange of charges and replies. Both these documents are fairly formal in nature. The particulars of the charges contained in the document served by the Public Prosecutor do not descend into the particulars of how the charges would be proven. The Ombudsman Commission Referral to the Public Prosecutor and Statement of Reasons does not contain particulars of the evidence of how the charges will be proven, apart from documents and one or two statutory declarations. In the circumstances we consider that this tribunal would have to be very careful before it reduced the weight or credibility of the Leader's evidence, not put to prosecution witnesses, and contrary to evidence of prosecution witnesses. The Tribunal would have to be satisfied that there was a fair and reasonable opportunity for the Leader to be aware, before the prosecution witness gave evidence, that the issues, in respect of which the Leader's witnesses subsequently gave contradictory evidence, would form part of the evidence coming from the prosecution witness. If that opportunity was not available then there would be no reason for the Leader's lawyer to have taken instructions on those issues and consequently he would not be in a position to put the Leader's response in cross examination. In those circumstances we would agree with the observations in Re Rudduck (supra) that the rule in Browne v Dunn was inappropriate.

54. As can be seen from our reasoning, we consider that whether the rule can be fairly applied depends on the factual situation of each case with respect to the manner and detail in which the Leader has had the opportunity of being for-warned of the case to be presented by the Public Prosecutor. Having considered the areas of evidence in which the Public Prosecutor has taken issue with the failure of the Leader to put his case in cross examination, we are not satisfied that there was notice to the Leader that those issues would form part of the case being presented. We therefore conclude that the application of the rule in Brown v Dunne to this tribunal on those issues is not appropriate and we have not discredited evidence given by Leader's witnesses on the basis that it was not put to the prosecution witnesses in cross examination.

55. Allegation No1 is an allegation of a breach of s.27(1) and s.27(5)(b) of the Constitution which are in the following terms:

(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, as not—

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

(b) fails to comply with a direction under Subsection (4) or otherwise fails to carry out the obligations imposed by Subsections (1), (2) and (3),

56. We are not satisfied that the Leader without lawful authority accepted the cheque from the Gaming Control Board for himself or his associates. It has not been shown that the allocation of funds by the Gaming Board for the purchase of an ambulance was unlawful. Although the submission on the effect of the Gaming Machine Act was made by the Public Prosecutor at the close of the evidence, there was no factual evidence produced to us from which we could draw the conclusion contended for. There is no evidence before us that there is no Gaming Board trust fund for the East Sepik, or that the East Sepik has no gaming machines or that the release of the money by the Gaming Board was contrary to the provisions of its Act.

57. There is no evidence that the cheque was ever in the Leader's personal possession or that he intended from the outset that the vehicle purchased would be used for his personal use in Port Moresby. It might be argued that the fact that the Leader's letter in January 2001 (dated January 2000) to Lancron could not be found at Lancron raises a suspicion that the letter is a recent invention. However it is equally plausible that the Lancron filing of documents is deficient, a view supported by the evidence of Chief Petty Officer Robin Gaius who gave evidence that was a possibility. To find that the letter was a recent invention would also require finding Mr. Makun lied, which we do not do. We address the related evidence above under "Summary of the Factual Conclusions". That the letter is dated January 2000 and not January 2001, is to our minds a common typographical error at the beginning of the year and goes more to support the letter's bona fides rather than its fabrication.

58. The cheque was payable to Ela Motors Ltd for purchase of a vehicle suitable for use as an ambulance. It was applied for that purpose. We do not consider it can be said that the Leader converted the funds to his personal use. Yes, he used the vehicle for his personal use, but the evidence falls short of establishing that he intended this to be a permanent arrangement. We find the allegation 1 particular (ii) proven. We consider that it must follow, if a Leader takes possession of an asset purchased from public funds, and uses that asset for his personal purposes, when he has no claim of right to the use of that asset by reason of his office, he demeans his office and brings the integrity of his office and his personal integrity into question. We find the Leader guilty on that charge.

59. Allegation No.2 is a charge under s.5(1) of the OLDRL which is in the following terms:

(1) A person to whom this Law applies who, except as specifically authorized by law, directly or indirectly asks for or accepts, on behalf of himself or an associate, any benefit in relation to any action (past, present or future) in the course of his duties, or in the course of or by reason of his official position, is guilty of misconduct in office.

We do not find that the Leader requested and accepted public money unlawfully, but we do find that having obtained money lawfully for lawful public purposes, namely purchase of an ambulance vehicle for the electorate, the Leader used that vehicle as his private vehicle for a period of almost 7 months, thereby indirectly accepting a benefit, albeit without the knowledge of the provider, thereby breaching s.5(1) of the Organic Law on the Duties and Responsibilities of Leadership. We find the Leader guilty on this charge.

(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

61. There is no evidence that the Gaming Board ever intended or had knowledge that the cheque raised by it would be used for the personal advantage of the Leader. Nor is there evidence that the cheque raised for the ambulance was intended by the Gaming Board to be a loan, gift or other benefit or advantage for the Leader. In the definitions to the OLDRL "benefit" includes any gift, loan or service (whether or not it has a monetary value) and all other personal advantages and favours given beyond the normal standards of hospitality. Therefore when one looks at Section 12 as a whole, the "value" received by the Leader takes the character imposed by the person from whom it is received or from agreement between the donor and the leader. The value does not take its nature from the way the Leader treats it. It is not possible to "accept" any of the loans, gifts, benefits or advantages if the giver did not intend them to have that character. In this case the Gaming Board raised a cheque payable to Ela Motors for the purpose of purchasing an ambulance for the benefit of the people of Wosera-Gawi. There is no evidence that the Gaming Board ever intended to give the proceeds of the cheque the character of a loan, gift benefit or other advantage for the Leader. Therefore the Leader could not have accepted the proceeds of the cheque with any of those characteristics. We therefore find the Leader not guilty on this count.

(a) intentionally applies any money forming part of any fund under the control of Papua New Guinea to any purpose to which it cannot be lawfully be applied; or

63. For the reasons set out under allegation No.1 we find that this charge is not made out. We are not satisfied that the Leader intended to misappropriate the funds or steal the vehicle. Nor are we satisfied it has been proven to the requisite standard that the money could not have been applied for the purpose. What he has done is misapply an asset on a temporary basis. We find the Leader not guilty on this charge.

64. Allegations 5 and 6 are made under Constitution s.27(1) and s.4(1) of the OLDRL and concern failure to properly complete the Leader's Annual Return required by s.27(5)(b) of the Constitution and s.4(6)(b) of the OLDRL. There is no doubt that the Leader should have disclosed in his Annual Return the fact that the asset of the vehicle had come into his possession and the benefit he received by using the vehicle over the period and distance as his personal transport. The Annual Returns were admitted into evidence by consent as exhibits 20 and 21A. They show that no disclosure was made of benefit received by the Leader in using the vehicle for his personal benefit or that the vehicle purchased had come under his personal control. For the purposes of completing Section 4 of the Annual Return it is irrelevant that the ownership of the vehicle did not vest in the Leader. The vehicle was an asset and it was under the Leader's control, therefore it should have been declared along with the disclosure of the true owner.

65. For those reasons we find the Leader guilty of the allegations contained in Allegations 5 and 6.

Public Prosecutor: Lawyer assisting the Tribunal
Liria Lawyers: Lawyer for the Leader.

Papua New Guinea Leadership Tribunal

In re Gallus Yumbui [2006] PGLT 3; N3993 (31 October 2006)