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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP. NO. 65 of 2002
In the Matter of the Organic Law on National and Local Level Government Elections And in the Matter of a Disputed Return for the WAPENAMANDA OPEN ELECTORATE
Between:
RIMBINK PATO
And:
REUBEN KAIULO,
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
And:
MIKI KAEKO
EP. NO. 68 of 2002
In the Matter of the Organic Law on National and Local Level Government Elections And in the Matter of a Disputed Return for the WAPENAMANDA OPEN ELECTORATE
Between:
MASKET IANGALIO
And:
YANGAKUN MIKI KAEOK
And:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
WAIGANI: KANDAKASI, J.
2003: 31st July
8th & 29th August 2003
PRACTICE & PROCEDURE – Application for disqualification of a judge is a serious matter and must be made on proper basis – An application without good basis may amount to contempt of court – When such an application is made, it is proper for the judge not to enter into the dispute arena and take a position to maintain his impartiality – Where allegations of fact are made against the judge concerned it is not proper for the judge to deal with the application and another judge must be allowed to deal with the matter.
PRACTICE & PROCEDURE – Use of affidavits – Court may order use of affidavits in which case s. 36 of the Evidence Act Chp.48 applies – Unless notice of intention to cross-examine is given prior to hearing date, there can be no cross-examination - Purporting to give notice of intention to cross-examine on day of hearing and in Court is no prior notice – Section 35 applies in cases where or order is made for use of affidavits under s. 34 of the Evidence Act – ss. 34, 35 and 36 Evidence Act Chp. 48.
COURTS & JUDGES – Application for disqualification of a judge is a serious matter – Application must be made on proper basis – Application made on allegation of judge having coffee with a party/lawyer - Key witness found not a credible witness and lying under oath – Consequence of – Application made without any good basis – Applicant motivated by a determination to prevent judge from further hearing the matter after having lost on preliminary arguments – Application scandalous of the judge and the court - Applicant and witness liable for contempt of court charges.
EVIDENCE – Assessment of – Evidence by affidavit – No cross-examination of evidence in rebuttal – Effect of – Evidence in affidavit not contested –Proper to find in terms of uncontested evidence – Logic and commonsense do play a major role – Evidence that is evasive, not logical, or not in keeping with any commonsense coupled with no cross-examination of evidence in rebuttal is suggestive of lack of credibility and evidence being fabricated.
LAWYERS – Duties of lawyers – Application for disqualification of a judge – Lawyers under duty to carefully consider the basis for such an application when instructed to make it - Lawyer duty bound to carefully consider and only allow meritorious applications to be made – Failure to do so may amount to a breach of the Lawyers Professional Conduct Rules and render the lawyer liable for a referral to the Lawyers Statutory Committee for appropriate disciplinary action – ss. 15(10) Professional Conduct Rules.
Cases Cited:
Edward Ramu Diro v. Justice Amet & Ors [1995] PNGLR 411
Mark Ankama v. Papua New Guinea Electricity Commission (23/10/202) N2363.
The State v. Edward Toude & Ors (No 1) (16/10/01) N2298.
James Togel v. Michael Ogio [1994] PNGLR 396.
The State v. Peter Malihombu (29/04/03) N2365.
The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266.
Coecon Limited (Receiver/Manager Appointed) v The National Fisheries Authority of Papua New Guinea & Anor (28/02/02) N2182.
Gobe Hongu Limited v. National Executive Council & Ors (16/07/99) N1964.
Overseas Cases Cited:
Brown v. Dunn (1879) R (HL).
Counsels:
Mr. J. Poro for the Second and First Respondent/Applicant.
Mr. Rimbink Pato (In Person) Mr S Reid for Petitioner/Respondent.
Mr. G.J.Sheppard and Mr. Leahy for Petitioner/Respondent (Masket Iangalio).
Mr. T. Sirae and Mr R William for the First and Second Respondent/ Respondent.
Mr. K. Kua as Amicus Curiae.
29th August, 2003.
KANDAKASI, J: Before me is an application by Honourable Miki Kaeok (the Member), Member of Parliament for the Wapenamanda Open Electorate seeking to disqualify, his Honour Justice Hinchliffe (his Honour) from further hearing and dealing with one of the two election petitions against the Member on the basis of apprehended bias.
Background
By way of background, the Member won the Wapenamanda Open Seat in Parliament in last year’s National General Elections. Dissatisfied with that result, both Mr. Rimbink Pato and Mr. Masket Iangalio (the petitioners) filed respectively their election petitions under EP 65 of 2002 and EP 68 of 2002. These petitions were progressed through the directions hearing and pre-trial and status conferences under the new Election Petition Rules. These were conducted before Justice Sevua and myself. In accordance with the rules and with the consent of the parties, the petitions were finally fixed for a joint trial commencing the 19th of May and ending the 3rd of June 2003. Justice Sevua allocated these dates on the 27th of March 2003.
His Honour as the trial judge was not confirmed until the 3rd of April 2003. On the 19th of May 2003, a status conference was conducted by his Honour where the readiness of the matter for trial was confirmed. The trial commenced with arguments on the competency on the 23rd and 26th of May 2003. The decision on that was delivered on 16th June 2003.
On the 14th of July 2003, the Member filed this application. Filed in support of the application was an affidavit sworn on the 11th of July 2003, by a George Karapus. The deponent alleged that he had seen his Honour and Mr. Pato on the 26th of May 2003, having coffee at the Holiday Inn Hotel (the Hotel) here in the National Capital District (NCD). At the same time, the Member unsuccessfully applied to the Supreme Court for a stay of the hearing of the petitions. That was on the basis that there were two Supreme Court reviews concerning petitions not addressed to the National Court as required by s. 206 of the Organic Law on National and Local-level Government Elections (the Organic Law).
The application to disqualify his Honour was initially heard by himself. His Honour denied the allegations against him and dismissed the application on the basis that there was no factual basis for the allegations. At the same time, his Honour proceeded to consider the conduct of the key witness, Mr. Karapus as contempt of Court and proceeded to deal with him. That included a sending of Mr. Karapus to prison. The Member appealed to the Supreme Court against these decisions and sought a stay of the proceedings pending the appeal.
The Supreme Court heard the Member’s appeal and by consent of the parties, the Supreme Court ordered that the decision not to disqualify be set aside and that the application be made before a different judge. Consequential on that, the parties also agreed and the Supreme Court set aside the contempt proceedings. They further agreed to a stay of the proceedings pending a determination of the Member’s applications.
The above position was reached on the basis of his Honour’s own decision in the matter of Edward Ramu Diro v. Justice Amet & Ors [1995] PNGLR 411. There, his Honour held that a leadership tribunal headed by Justice Amet (as he then was) should have disqualified on the basis of apprehended bias. In consequence of that, his Honour quashed a decision not to disqualify by the tribunal and directed a different tribunal to deal with the matter. This case is authority for the proposition that, where an allegation of bias is levelled against a judge or a tribunal, that judge or the tribunal is not the appropriate authority to deal with the application. Instead, a different tribunal must hear and determine the question of whether or not the judge or tribunal should disqualify.
Following the decision of the Supreme Court, the matter first came before me on the 17th of July 2003. At that time, I issued a number of directions. That included a direction for the Member to file and serve his affidavits in reply to those filed by and for Mr. Pato. The matter returned before me on the 31st of July for hearing. I completed the hearing with written submissions to be filed by parties and spoken to on the 5th of August 2003. I was however, not able to conclude the hearing on that date as I was committed to a number directions hearing for a number of other election petitions arising out of the supplementary elections for the Southern Highlands Province. So the matter was stood over to the 8th of August 2003. On my suggestion, the parties agreed to let the Court consider the submissions and arrive at a decision subject to any further assistance the Court might require of the parties if need be.
Arguments of the Parties
The submissions of the parties were filed on the 8th of August 2003. After consideration of the submissions, I have come to the view that the Court does not require the further assistance of the parties before proceeding to judgement. So I have not called on the parties for further assistance.
Relying on the affidavit evidence of Mr. Karapus, the Member claims that his Honour was seen having coffee with Mr. Rimbink Pato, a party in these proceedings on the 26th of May 2003 at the Holiday Inn Coffee Shop. This, he argues, gives the bases for an apprehension that His Honour is and would not be impartial and that he would be bias. Thus, he argues that his Honour should disqualify from hearing this matter. Mr. Pato and Mr. Iangalio submit that the claim of his Honour having coffee with Mr. Pato has no factual foundation. As such, they argue that there is no basis for the application. Therefore, they submit that application should be dismissed. Further or in the alternative, Mr. Iangalio argues that, if the application is sustained, it should only apply to EP 65 of 2002 because the application is only in relation to the proceedings under that petition.
It is further submitted for the petitioners that the application to disqualify his Honour is actuated by improper motive. That motive is to prevent his Honour from further dealing with the matter. This so they argue, because his Honour has ruled against the Member on his objection to the competency of the petitions against him and his Honour’s decision to allow Mr. Pato to call evidence despite earlier orders preventing him from doing so. They further argue that, the conduct of Mr. Karapus and the Member amounts to contempt in the face of the Court for which they should be appropriately dealt with for contempt of Court.
Mr. Kua who has been briefed by the Attorney General to appear for his Honour indicated that, on advice, his Honour was not taking any position in this matter. His Honour has otherwise deposed to an affidavit denying the allegations levelled against him but has not been filed on legal advice. The advice has been that, there is sufficient evidence from other sources to deal with the denial of the allegations against him. The filing of the affidavit would expose him to cross-examination and draw him into the arena of dispute. This would not be a desirable precedent submitted.
I considered the considered approach of his Honour a proper one. This is because I am of the view that if he decided to do otherwise, he would have entered the arena of dispute for the simple reason that, if the application was not granted, he would be required to continue with the hearing of the petitions. Further, I considered it advisable that his Honour should not go into evidence so that the other witnesses’ evidences can be assessed on their performance in the witness box and on their own merits. Allowing his Honour into the dispute arena has the potential of unduly influencing the Court when faced with the challenge of which version of the facts to accept. There is no argument that, generally, judges are people with high honesty and integrity. So a tribunal faced with a challenge to decide whether or not to accept the testimony of a judge over those of any other person could be influence with that generally accepted position and not necessarily on its on merits.
Nevertheless, given the importance and the seriousness of the issues raised, the Court asked Mr. Kua to assist the Court with submissions as amicus curiae and he has kindly obliged and I am thankful. His arguments support those of the petitioners.
Relevant Issues
These arguments present a number of issues to be determined. The main issues from these arguments are these:
All of these questions are dependent on a finding of the relevant facts. I will therefore first deal with the evidence and the facts emerging from that. Then based on a finding of the facts, I will answer each of the questions raised.
The Evidence and the Fact
At the commencement of the proceedings before me on the 31st July 2003, the Member applied for an adjournment. The petitioners, in particular Mr. Pato, opposed that application as the Member had failed to respond to a request for an adjournment a few days before the date for hearing. In the circumstances, I refused the application to adjourn and ordered the trial to proceed.
Prior to the hearing, the parties were ordered and or directed to file their respective affidavits. Pursuant to those directions or orders of the Court, the parties filed a number of affidavits. For the Member are the following affidavits of:
As for the petitioners, no affidavits were filed by or for Mr. Iangalio, as the allegation does not involve him. Also as already noted, no affidavits were filed for or by his Honour. The Electoral Commission decided not to take any position in the application. Accordingly, it filed no affidavit evidence. Mr. Pato filed a number of affidavits seeking to rebut the Member’s affidavit evidence and allegation. These are the affidavits of:
1. Rimbink Pato sworn 15th and 24th July 2003.
The hearing of the Member’s application commenced with the Member calling his key witness for cross-examination and was cross-examined. The petitioners took the view that the Member’s other witnesses had nothing to say about the material allegation and were only raising peripheral issues. Therefore they decided not to cross-examine them. Therefore all of their affidavits were admitted into evidence subject to weight.
As for the affidavits filed by and for Mr. Pato, they were admitted into evidence without cross-examination. That decision was arrived at on the basis of the Member not giving notice of his intention to cross-examine Mr. Pato’s witnesses prior to the hearing. The member sought to cross-examine these witnesses after having served notice of his intention to do so in Court during the hearing.
The arguments for and against the Member’s right to cross-examine were centred on ss.34, 35, and 36 of the Evidence Act Chp. 48. I formed the view that s.34 empowers a Tribunal or a Court to order or direct the use of an affidavit in appropriate cases, in the interest of doing justice. The next provision, s.35, empowers a party to any proceeding before a tribunal to use an affidavit provided notice of that intention together with the affidavit in question is served on the other side, 5 clear days before the date set for the hearing. That provision also obligates the party on whom such a notice is served, to serve a notice of his objection and or a requirement to cross-examine, unless that party is not opposed to the use of the affidavit and consequently accepts the use of the affidavit.
I expressed the view that, where the Court or a Tribunal has made or issued orders under s. 34, the provisions of s. 35 do not apply. Instead, the provisions of s.36 applies. This provision, in my view, obligates a party wishing to cross-examination deponents of affidavits filed under s. 34 to give notice of that intention prior to the date of the hearing. There is no specific time limit for that to happen as long as notice is given prior to the hearing. Accordingly, I ruled that purported giving of notice in Court during the hearing or on the day of the hearing was not given notice prior to the hearing. This was in keeping with the rational behind the requirement to give notice. The rationale is to give sufficient notice and more importantly time to the party required to produce the witness for cross-examination to organize the witnesses’ appearance in sufficient time. That can not happen on a very short notice, let alone within minutes of such a notice.
Assessment of the Evidence and Finding of Facts
I now proceed to assess the evidence before me, starting with that of the Member. I do so, on basis of the well-accepted principle of "he who alleges must prove it". There are numerous authorities on this statement of the law. For examples of authorities requiring or following this procedure, I refer only to my judgement in Mark Ankama v. Papua New Guinea Electricity Commission (unreported judgement delivered 23/10/02) N2363 at p.15 and the cases cited therein.
There is no dispute between the parties that the Member’s case stands or falls on the evidence of his key witness, Mr. Karapus. This witness says in his evidence in the form of his affidavit and under cross-examination that, he was an in-house security guard employed by the Holiday Inn at Waigani, in the NCD. He was in that employment for almost three years, since 20th September 2003. He originally comes from Maremanda, in the Middle Lai Area in the Wapenamanda Electorate. But he is a registered voter in the North West Electorate in the NCD, yet maintaining an interest in matters concerning the Wapenamanda Electorate.
He says on the 26th of May at about 9:30 pm, whilst on duty, he walked along the main corridor of the Hotel, leading out toward the swimming pool side from the reception area. As he walked along, he says he looked through the glass wall into the coffee shop, known as "Kopi Haus" and immediately recognised Mr. Rimbink Pato, a prominent lawyer from Wapenamanda. Opposite Mr. Pato, he says, was an expatriate man who was wearing a spectacle. They were having coffee and appeared to be in a deep conversation. Then out of curiosity, he says, he wanted to see, who was the person Mr. Pato was with and eventually recognised the person as a frequent guest of the Hotel.
Later, on the 16th of June 2003, he went with a Wesley Isaac, an uncle of his to the National Court at Waigani as he heard that a decision relating to the Wapenamanda Electorate was going to be handed down. It was at this time that he says, he recognised the person who had coffee with Mr. Pato on the 26th of May 2003, as the presiding judge. He says, he could not have been mistaken because he had seen the judge before and during his time with Mr. Pato. He says, he was surprised and told some Wapenamanda people that he had seen the judge with Mr. Pato in the coffee shop, where he worked. He says, he inquired at the courthouse as to the name of the presiding judge and was told that his name was Justice Timothy Hinchliffe. Further, he says that he had heard the name before but was not able to put the name to the face until he came to Court and inquired and found out as he says he did.
Finally, the witness says, because he had told a number of people about the judge having coffee with Mr. Pato, he was asked to give his evidence and he obliged.
In response to an affidavit sworn by Mr. James Burton, the Manager of the Holiday Inn Hotel, Mr. Karapus says, he has given his life to Christ and attends the Morata SDA church. He then states that, what he had already stated in his first affidavit is true.
The affidavit of Mr. Burton states that, according to the Hotel records, Mr. Karapus was to be picked up for duty at 9:30pm for the midnight shift on the 26th of May 2003 and was picked at that time. Again, based on the normal pick-up and drop off runs, Mr. Karapus could have arrived at the Hotel between 10:30 and 11:00 pm, an hour before commencement of duty. In accordance with that established schedule, Mr. Karapus would have arrived at no earlier than 10:30 pm by which time the coffee shop would have been closed and the staff dropped off. Mr. Burton also deposes to Mr. Karapus being scheduled to man the main gate from midnight on 26th until 8:00am on the 27th of May 2003. Mr. Burton annexes to his affidavit the respective records from which he speaks.
Commenting on these evidences, Mr. Karapus challenges the source of Mr. Burton’s evidence. He also says that he had put a stop to his pick-ups for the midnight shifts because of a "no go zone" declaration by the Hotel, covering his area, Morata. Instead, he says he would get to the Hotel early, change into his uniform and prepare for his duty. He says, he has been doing this over a period of time. Under cross-examination, he said he would change into his work uniform and start as early as 8:00 or 9:00pm for midnight shifts. Yet, he neither claimed nor did he receive any overtime pay. He says in effect therefore that, he has been giving free service to his employer for the times he commenced worked well before his commencement time.
Mr. Burton’s evidence directly rebuts Mr. Karapus’ evidence. Mr. Pato’s first affidavit of the 15th of July 2003, add to Mr. Burton’s affidavit, in that, he totally denies the claim of him and his Honour been seen have coffee at the Holiday Inn Hotel on the 26th of May 2003. He says, he has never in his life had coffee with his Honour, although he has had on many occasions had coffee or meals with other Caucasians. The Member made a deliberate decision not to cross-examine Mr. Pato on his first affidavit. As for Mr. Burton, the Member failed to serve notice of his intention to cross-examine him. Yet, at the hearing as noted, he applied to cross-examine Mr. Burton. For the reasons already given, I decline that application. This resulted in no cross-examination of Mr. Burton as well. Hence, both Mr. Pato’s and Mr. Burton’s affidavits evidences stand unchallenged in the usual way of cross-examination.
It is settled law that where a party takes issue with any evidence called by his opponent and is going to call evidence to support his version, he must put his version of the evidence to his opponent’s witnesses in cross-examination. Where a party fails to do so, he stands the risk of the Court accepting the unchallenged evidence. This principle of law traces back to the case of Brown v. Dunn (1879) R (HL) which has been applied in many cases. A latest application of that principle is my own judgement in, The State v. Edward Toude & Ors (No 1) (16/10/01) N2298, in the context of a criminal case. This principle of law has been adopted and applied in election petition cases too. A case on point is the case of, James Togel v. Michael Ogio [1994] PNGLR 396. In that case the Court stated that principle in these terms at p. 400:
"Failure to put a fact of evidence in cross examination of a witness has been considered in many cases dealing with the rule in Browne v Dunn [1893] 6. R. 67. One consequence of the rule can be that the Court is entitled to conclude, when considering all the weight of the evidence that a witness who gives evidence of facts not put in cross examination of the witness of an opposing party has made things up."
Indeed, in my view, the provisions of s. 35 of the Evidence Act support that view. These provisions provide that, a failure by an opposing party to give notice of his or her intention to cross-examine the opponent’s deponent where an affidavit is sought to be used, amounts to consent by the failing party to the use of the affidavit.
In this case, the Member failed to properly exercise his right of cross-examination. So the evidence in rebuttal of his contention stands unchallenged. This means, there is nothing questioning the credibility and correctness of what is deposed to in the affidavits of Mr. Burton and Mr. Pato. These affidavits provide the basis for the respondents’ disputing Mr. Karapus’ claim and cross-examining him in the terms of what is contained in these affidavits. It could follow therefore that, the claim by Mr. Karapus and therefore the Member’s claim can not been sustained on account of their failure to challenge the evidence in rebuttal of his.
The Member argues however, that Mr. Pato’s first affidavit contains a mere denial without any details and alibis although in his second affidavit, he tries to do that. This, the Member submits "brings high suspicion or apprehension of bias in [his] ... mind". He also argues further that, further suspicion is added by the fact that "his Honour allowed E.P. 68 of 2002 to go to trial when it was offending to Section 206 of the Organic Law". The Member then argues in effect that Mr. Karapus’ evidence should be accepted because:
(1) they are credible and that there was no doubt in his identification of his Honour and Mr. Pato;
(2) he gave definite answers during cross-examination;
(3) he maintained his testimony despite being threatened and being sent to prison;
(4) other witnesses corroborate him; and
(5) the evidence in rebuttal is merely from records which are questionable as to their accuracy and are inconclusive.
The first part of this submission has two parts. The first is in relation to decision being made against the Member. With regard to that, I say this without anything further. A judge is entitled to arrive at a decision. That decision would inevitable favour one of the parties and go against the other. But that does not mean that the judge is bias.
The second part concerns the legal position in relation to who has the burden of prove. The submission, with respect fails to appreciate the clear legal position as already noted that, he who alleges must prove it. Only after a prima facie case is established, can the opposing party be called upon to rebut it. In other words, it is clear law that a Court must be first satisfied of a prima facie case against a person defending an allegation before the Court can proceed to give consideration to the evidence for the defence.
I state the law in these terms in The State v. Peter Malihombu (29/04/03) N2365, at p.:
"It is settled law that the defence can not establish the prosecution’s case. That means the prosecution must first establish a prima facie case against an accused person. That includes an obligation to negative any defence that may be raised by the defence. Once the prosecution has established a prima facie case, only then can the defence be called upon to answer it: R v. Agana Guguna (1965) N364 and The State v Cosmos Kutau Kitawal and Christopher Kutau (No 1) (15/05/02) N2266. It follows therefore in my view that if the defence has gone into evidence, a Court must delay a consideration of that evidence until it is satisfied that the prosecution has discharged its obligations. I believe this is the consequence of the Constitutional guarantee of presumption of innocence until proven guilty."
The submission also ignores the settle law in relation to evidence that has not been challenged by cross-examination and the rule in Brown v. Dunn (supra), in relation to the affidavit evidence of Mr. Pato and Mr. Burton. If indeed they were serious as far as the Member was concerned he should have given notice of his intention to cross-examine these witnesses and cross-examine them. He did not do that.
In relation to the witness maintain his story, I am of the view that the argument could go either way. The witness had to maintain his story in support of his allegation as it was already made and told and that he was already dealt with. Retracting would do him and the Member more harm in terms of their reputation and other consequences at law.
The rest of the Member’s arguments go to the credibility of his key witness’ evidence. Credibility is dependent on a number of factors. These factors revolve mainly around the performance of the witness in the witness box, which goes to his demeanour and the kind of evidence he gives, whether it is in line with logic and commonsense. Logic and commonsense does therefore play a major role in determining whether a witness and therefore his or her evidences are credible. I restated the law in The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266 in these terms:
"Logic and commonsense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty. In The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48, applying a logical and commonsense approach, the National Court found the defendants guilty of murder even when there was no evidence directly showing that the defendants had killed the deceased. The Court proceeded to convict them, when the defendant’s failed to provide a reasonable explanation for the appearance of the badly wounded deceased body in their house. On appeal, the Supreme Court affirmed the National Court’s approach and dismissed the appeal: see Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528 and Paulus Pawa v. The State [1981] PNGLR 498 for an earlier authority on point."
Although this was in the context of a criminal case, it applies to all cases, where the question of credibility of witnesses and their evidence arises. Applying these principles to the case at hand, I ask the question. Has Mr. Karapus given a story that is logical and in keeping with common sense?
This question can be answered by having particular regard to the entirety of his evidence. For a start, he says he is a registered voter in the North West Open Electorate in the NCD but has an interest in the Wapenamanda Open Electorate. He does not say why that is so. Then if he does have such an interest, he should have known something about the election and its outcome for the electorate in question. Yet, he gives no evidence about the election and the fact that these petitions were filed. Then suddenly he speaks of learning of a decision by the National Court in relation to the Wapenamanda Open Seat to be delivered on the 16th of June 2003. He does not state as to where or how he got that information and why was it necessary for him to get to the Court to witness the delivery of the decision. Logic and commonsense require some explanation as to how he became involved and or got his interest in this matter. He is clearly in my view being evasive here.
Next, the witness speaks of confirming in Court on the 16th of June 2003 as his Honour to be the person who had coffee with Mr. Pato on the 26th of May 2003 at the Hotel. Upon doing so, he says he was surprised and spoke to a number of people from Wapenamanda. He does not say what caused him to be surprised and what made him to speak to the people from Wapenamanda. Also, he does not even specify the persons he spoke to and why those persons. Logic and commonsense dictate some explanation to be given but has not been given. Again, the witness is evasive here.
Prior to that, when speaking about his allegation of seeing Mr. Pato and his Honour, he speaks of being curious as to who was with Mr. Pato. But he does not state, what caused the curiosity. Again, commonsense and logic dictate an explanation and he has failed to provide one. He is being evasive yet again.
Further, the witness speaks of being asked to give evidence because he had spoken to the unspecified people from Wapenamanda. Consistent with his pattern of being evasive, he does not disclose who approached him, when and where.
This pattern of being evasive was continued during his cross-examination. This started with his choosing to speak in pidgin despite a preference to English in the proceedings before his Honour and having deposed to his affidavits in English without any interpretation. Most of the question put to him in cross-examination was clear and even simple in some instances but he did not answer them directly. This forced on a repeat of the questions or explanations from the bench. Clear examples of these are in the questions and answers relating to the time of his pick up and commencement of duties as well as the entry and maintenance of records over these aspects.
In addition to the evasions, the witness also gave evidence, which run contrary to any logic or commonsense and or what is usual. The clearest example of this is his claim that he used to start his duties much earlier, particularly at the times when he was scheduled for midnight shifts. He claims to having commenced duties as early as 8:00p.m., some 4 hours prior to the commencement of his time. He also claims that he had been giving these extra services for free to the Hotel and that he had not made any claims for overtime. This is very unusual because this is the first time I have come to learn of an employee giving such a period of free service to a business such as the Hotel over a period of time. It is very common for employees to readily make claims for overtime and a failure or refusal to work for extra hours for free.
The uncontested evidence from the Hotel manager does not confirm the witness’ claims. The Hotel instead states through its manager, Mr. Burton that, it is beyond its regulation and or rules for employees to commence work well ahead of their commencement time. Specifically for security guard employees like the witness, the Hotel manager says, its rules do not allow for an earlier change into their uniforms until about 30 minutes before their scheduled time of commencement.
One other part of his evidence stands out unexplained is that, the witness does not state what caused him to be at the place where he says he was when he saw Mr. Pato and his Honour. This is important because the uncontested evidence from Mr. Burton is that, the witness was rostered to man the main gate on the 26th of May 2003. It is, thus not clear as to why the witness got to the coffee shop area as he claims he did, if indeed he went there.
Finally, having seen Mr. Karapus in the witness box and observing how he performed as a witness, I did not get the impression that he was a truthful witness. Given this and the foregoing factors, I am not satisfied that this witness was a truthful witness. Instead, I find him to be a person who was evasive, illogical and not keeping with any commonsense in his evidence and a person thus prepared to lie under oath. I therefore reject his evidence.
Given the above finds, I am of the view that it is not necessary for me to consider the evidence in the rest of the affidavits. In any case, I note that the parties agreed that these affidavits do not cover the main allegation. Instead, they contain matters that appear to have occurred after the allegations and well after Mr. Karapus was dealt with for contempt of Court by his Honour. These affidavits contain accusations and counter accusations levelled against the respective supporters of Mr. Pato and the Member.
Further, these affidavits were admitted into evidence with the consent of the parties. Without the benefit of cross-examination, I am not able to tell whether what any of them are saying in their affidavit is true. But one thing is clear, these are affidavits filed specifically to either challenge or defend the main allegation by persons who are supporters of the Member and Mr. Pato respectively. All of them therefore, have a vested interest in the outcome of the application before me. Hence, they are not independent witnesses. Based on this and the foregoing reasons, I decline to give any consideration to the other affidavits.
But there is one particular aspect of these affidavits that I make specific mention of. Mr. Singke Wani has given two different versions of his evidence. In one version, he supports Mr. Karapus’ allegations. In another, he gives an account that effectively goes against the allegations. There can be no doubt that Mr. Wani is deliberately lying under one of the affidavits, for he could not be telling the truth in both affidavits.
I note from my experience at the bar, particularly in relation to election petitions that witness readily and constantly change their evidence. They do that in exchange for some form of personal gain. They have come to make business out of what they are prepared to say even if what they set out to say is not true. As I observed in the course of the hearing, this kind of conduct or business is bad business. It could amount to an act of perverting the cause of justice or perjury or both. This kind of conduct must be stopped before it is too late. I therefore recommend that Mr Singke Wani be charged with perjury pursuant to s. 121 of the Criminal Code. For that purpose, I order that a summons be issued forthwith for his arrest. Failing a prosecution under s. 121 of the Criminal Code, I recommend strongly that the he be charged with any other offence the Public Prosecutor might consider sustainable based on his considered view.
In short, I find that the allegation of his Honour and Mr. Pato having coffee on the 26th of May 2003 has not been made out. Instead, I find that that story has been made up.
The above finding renders it not necessary for me to consider the second issue. I will therefore proceed onto considering the third issue of whether the application for disqualification has been actuated by improper motive.
Whether Application Actuated by Improper Motive?
The petitioners and Mr. Kua submit that the application by the Member is actuated by improper motive. The motive they submit is to stop his Honour from conducting the trial of these petitions because he has already made decisions against the Member in his Honour’s preliminary rulings. The preliminary rulings are in terms of the Member’s objection to the competency of the petitions and Mr. Pato’s right to call witnesses in support of his petition.
In support of this submission, reference is made to the Member’s own affidavit of the 24th of July 2003, particularly paragraphs 2, 3 and 4. The opening of paragraph 2 states:
"I have made this application for the Disqualification of His Honour Justice Hinchcliffe to proceed with the trial of this petition after evaluating the manner in which His Honour dealt with this petition during competency stage up to the trial stage."
The Member then sets out five grounds upon which he is making the application. The first three speak of a failure to strike out E.P. 68 of 2002 for not being addressed to the National Court. The second is a failure to consider the submissions of his lawyer and thirdly, a failure to go along with earlier orders by Justice Sevua and myself in relation to witness statements and affidavits under E.P.65 of 2002. The final two grounds are based on the allegation made by Mr. Karapus and his Honour having dealt with in the way he did.
In paragraph 3, he says the above ground and the allegations of Mr. Karapus have given him reason to make the application. Then in paragraph 4 he says:
"Whatever the outcome is of my application, I, still believe that the same judge should not preside over these petitions. If the judge is allowed to preside over these petitions, I, believe that there will always remain an element of bias as I have already made accusations against him and that he is emotionally and psychologically not in tune with me and therefore I believe that there remains a real likelihood of bias. Even to the minds of the ordinary people, there will be an apprehension of bias at the back of their mind."
Counsel for the Member takes up these grounds in its submission at pp. 3 – 4, a summary of which is in these terms at p.4:
"All these deliberate disregard of the arguments raised in the submission by Mr Kaeok’s counsel and the trial judge’s deliberate disregard to adhere to previous directions and orders made by his brother judges and deciding on issues which the National Court has already dealt with in terms of section 206 and handing down a blanket decision on the objections raised on both Petitions separately to allow the Petitions to go to trial has created some doubt in the mind of Mr Kaeok and his supporters as to the impartiality of the judge."
The first three grounds, if they have any merit, are matters that should be taken up on a review of his Honour’s decisions. In any case, I have had a look at the decisions and I can not see any trace of His Honour doing anything other than having given consideration to all of the parties’ submission before arriving at his decision. It is an integral part of judgement to consider all submission and then decide which of the submissions to accept based on a number of factors, but more importantly what the law says, which is usually reflective of the presiding judge’s view of the law. This necessarily allows for a rejection of the submissions of one of the parties to the proceedings. But that does not necessarily mean that the judge is bias.
In the present case, his Honour was asked to follow three other National Court judgements. National Court judgements are not binding on itself. It is only bound by the decisions of the Supreme Court. A National Court is therefore entitled to arrive at a decision that is different from another National Court for good reasons. It is therefore wrong to argue that the learned trial judge was obliged to follow the earlier National Court judgements.
Further, in relation to the decision allowing Mr. Pato to call evidence, I recall that, at the time of my ruling, I expressly left it to the discretion of the trial judge to either allow or preclude evidence from being called. His Honour had before him an application for leave for Mr. Pato to call, evidence. His Honour considered the application and granted it. Subject to any grounds of appeal on its merits, I can not see anything wrong with that procedurally.
As for the allegations made by Mr. Karapus, I have already rejected that allegation as not being established. I add however, one observation that, the Member does not specify who told him about Mr. Karapus and his allegations. This is consistent with the pattern adopted by Mr. Karapus. It formed one of the reasons for my rejection of Mr. Karapus’ allegations. It follows therefore that, this is not a good ground for the application.
This leaves me to consider what the Member says in paragraph 4 of his affidavit. This paragraph, in my view, contains the real reasons for the Member’s application. He does not want his Honour to continue with the hearing of the matter. The Member wants this result even if he is not successful on the application. The main reason for that is because his Honour has made decisions against him already. It also seems clear to me that he has raised the allegations through Mr. Karapus and made the application under consideration before me in a bid to get his Honour, using the Member’s own words, "emotionally and psychologically not in tune with me [the member]". Through this means, it also seems clear from what he deposes to that a foundation for an apprehension of bias could be laid, on account of which his Honour should disqualify. The instances of evasion as noted in the course of considering Mr. Karapus evidence as well as that of Member was designed to hide the real motive for making the allegations and the story.
A careful consideration of these, inevitably leads to the conclusion that the application has been motivated by a determination on the part of the Member to prevent his Honour conducting the trial. This was re-confirmed before me. At the outset of the hearing of the Member’s application, I suggested to the Member through his counsel that it might be advisable to delay his application until a final determination on the petition. That suggestion was put to him because it was not possible to tell what the final decision on the petitions would be. As such, the possibility of the final decision favouring him was still there. In the event that, that went against him, he could go for a review of the decision and at that time he could still raise the issue of bias. The suggestion was also put to him in order that delay in a hearing of the petitions and costs to the parties are minimized. Despite the possible benefits, the Member rejected the suggestion.
Having found that the Member’s application was actuated by an improper motive, I now need to consider, whether the Member and his key witness’ conduct amounts to a possible case of contempt of Court. That is the subject of the fourth and final issue before me.
Possible Contempt of Court
It is clear from a number of cases on disqualification of judges that, it is a serious matter to ask a judge to disqualify. A recent statement that is in my own judgement in Coecon Limited (Receiver/Manager Appointed) v The National Fisheries Authority of Papua New Guinea & Anor (28/02/02) N2182, in these terms at pp. 16 –17:
"It is a very serious matter when a party applies for a judge to disqualify. This is simply because by just the making of the application, the party making the application is in fact questioning the impartiality of the judge to whom the application is made. Making such an application without proper basis is not only unacceptable but may give rise to questions over the integrity of the counsel who is making such an application. Counsel should always bear in mind that whilst they may be pursuing the interest of their client, they have a duty to the Court to only come with applications or make submissions only with good factual and legal basis in so far as is relevant."
This is why other authorities such as the case of Gobe Hongu Limited v. National Executive Council & Ors (16/07/99) N1964, make it clear that, judges should not readily accede to applications for disqualification. Instead, they should resist from being driven from their courts by conduct or assertions of the parties.
It should follow reasonably therefore that, where an application is made without any proper factual and or legal foundation would amount to scandalizing the Court. This, in my view, imposes a duty on a party’s legal counsel to properly screen and assess the basis before advancing his or her client’s application for a judge’s disqualification. Indeed, s. 15 of the Professional Conduct Rules imposes a number of duties upon lawyers in matters before a Court. In particular, subsection 10 provides that:
"In all cases, it is the duty of a lawyer—
(a) to guard against being made the channel for questions or statements which are only intended to insult or annoy either the witness or any other person or otherwise are an abuse of a lawyer's function; and
(b) to exercise his own judgement both as to the substance and the form of the questions put or statements made."
(Emphasis mine)
In this case, the petitioners and Mr. Kua, submit that the Member’s conduct amounts to a baseless and scandalous attack on the integrity and reputation of a senior judge of both the Supreme and National Courts of Justices of Papua New Guinea. The Member should therefore be appropriately dealt with for contempt. There is no argument in response from the Member.
Given the views I have arrived at in relation to all of the issues already dealt with, I find there is merit in the argument for the Member to be dealt with for contempt of Court. I find there is a prima facie case for a charge of contempt against the Member. I also find that there is a possible case for contempt of Court against Mr. Karapus for making allegations directly against a judge who was dealing with a matter solely for the purposes of getting the judge to disqualify. I therefore order that that the Member and his key witness, Mr. Karapus be appropriately dealt with for contempt of Court.
Additionally, I recommend that Mr. Karapus be charged with perjury under s.121 of the Criminal Code, for which purpose I order a warrant for his arrest be issued forthwith. I also recommend that, Mr. Karapus be charged with attempting to pervert the cause of justice under s.136 of the Criminal Code.
Further, I am of the view that Mr Poro has failed in his duty to the Court to carefully consider the basis of his client’s application. Instead, it seems he as merely acted on his instruction without assessing and passing his own judgement as to the substance of the instruction he has received. I therefore recommend that he be referred to the Lawyers Statutory Committee to be appropriately dealt with.
The presentation of the charges and referral may cause further delays in hearing and determination of the petitions in this matter. They are presently part heard before, his Honour. Election petitions are supposed to be dealt with expeditious. Indeed, I note most of the elections petitions out to the 2002 National General Elections have been already dealt with. I therefore consider it appropriate that the actual presentation of the charges and the referral should be delayed until after the hearing and determination of the petitions. I therefore make orders in those terms.
In the end result, I order as follows:
The final matter remaining is the question of costs. Costs normally follow the event. The event here is a dismissal of the Member’s
application. I therefore order costs against him, to be agreed if not, taxed.
______________________________________________________________________
Lawyers for the Applicant/Second and First Respondent: Poro Lawyers
Lawyers for the First Respondent/ Petitioner (Mr. Pato): Pato Lawyers.
Lawyers for the Second Respondent/Petitioner (Mr. Iangalio): Maladinas Lawyers.
Lawyers for the Third Respondent/ First and Second Respondent: Nonggorr & Associates
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