Mopio, Re [1981] PGSC 14; [1981] PNGLR 416 (19 October 1981)

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[1981] PNGLR 416 - Re Tribunal Appointed Under the Organic Law on the Duties and Responsibilities of Leadership; Re the Hon James Eki Mopio, MP

IN THE MATTER OF A TRIBUNAL APPOINTED UNDER THE PROVISIONS OF S. 27(7)(E) OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP.

AND IN THE MATTER OF CERTAIN CASES OF ALLEGED MISCONDUCT IN OFFICE BY THE HON. JAMES EKI MOPIO M.P.

QUASI JUDICIAL TRIBUNALS - Leadership Tribunal - Standard of proof - Alleged misconduct in office - Standard of proof to be applied by Tribunal - Tribunal to be reasonably satisfied - No absolute standard.

The Leadership Tribunal which is charged with inquiring into allegations of misconduct in office by those who are subject to the Leadership Code, which misconduct is an offence both under the Constitution and the Organic Law on the Duties and Responsibilities of Leadership:

N1>(b) is required to act in compliance with the principles of natural justice; and

N1>(c) is not required to apply any absolute degree or standard of proof but must be reasonably satisfied of the truth of the allegations or denials before it, and must give full weight to the gravity of the charge and the adverse consequences which may follow: which satisfaction in matters so grave can never be achieved on a mere balance of probabilities.

This was a reference to the Supreme Court pursuant to s. 18 of the Constitution by a Leadership Tribunal of certain questions which are fully set out at p. 421.

KIDU CJ KEARNEY DCJ ANDREW J PRATT J: This is a reference from a Tribunal appointed under the provisions of the Organic Law on the Duties and Responsibilities of Leadership (“the Leadership Tribunal”), to investigate certain cases of alleged misconduct in office by a member of the National Parliament.

The questions referred relate to the appropriate standard of proof to be applied by the Leadership Tribunal in such an inquiry and clarification is sought as to whether the same standard of proof would apply in a count that involves the allegation of what also amounts to a criminal offence as compared to one involving civil issues only.

Section 27 of Pt. V of the Organic Law on the Duties and Responsibilities of Leadership provides for enforcement in cases of misconduct in office by those subject to the Leadership Code. Section 27 is a grant of power to the Public Prosecutor or the Ombudsman Commission to refer a matter of misconduct in office to the appropriate tribunal. Sections 27(4) and (5) are as follows:

N2>“27(4) The tribunal shall make due inquiry into the matter referred to it, without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.

N2>(5) If the tribunal finds that a person to whom this Law applies is guilty of misconduct in office, it shall recommend to the appropriate authority that—

(b) as permitted by Section 28(1a) (further provisions relating to the Leadership Code) of the Constitution and in the circumstances set out in that subsection—some other penalty provided for by an Act of the Parliament be imposed.”

Clearly there is no specific guidance as to the appropriate standard of proof to be applied by the Leadership Tribunal and similarly there is no specific guidance within the Constitution. The Final Report of the Constitutional Planning Committee 1974 at Ch. 3, pars. 94 and 95 recommended that such tribunals should be judicial in character but separate from an ordinary court.

N2>“96. These tribunals should have all necessary powers and authority to conduct the hearing, summon witnesses, take evidence, make decisions and otherwise function as judicial bodies. We envisage that they may adopt procedures which are somewhat more informal than those of a court, but that there will be adequate protection of the rights of those charged with a breach of the Code.”

Mr. Wilson spent some considerable time developing a submission that this Court should not answer any of the questions raised because to do so would unnecessarily hamper not only the present Tribunal but future ones as well. Despite his reference to a number of authorities, we cannot find they support such a submission. The standard of proof is not merely a procedural matter. It may be that the standard will vary within certain limits depending on the nature of the matter for determination, but it would be erroneous to suggest that what Deane J. terms administrative justice in Minister for Immigration and Ethnic Affairs v. Pochi[dclxii]¹ was intended to cover such substantive areas as the degree of satisfaction which a particular tribunal must feel before it arrives at an affirmative finding of fact. When Lord Morris of Borth-y-Gest says at p. 309 of Wiseman v. Borneman[dclxiii]²:

“We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done.”

We do not consider that his Lordship is suggesting any constraints on the superior courts in giving guidance on such an important and basic issue as the degree of proof.

In essence the nature of the reference is quite simple—what is the standard of proof applicable in matters raised before the Leadership Tribunal, especially where some of the allegations amount to criminal conduct?

Whilst it is true that the tribunal making its investigations and findings under the Act must observe the principles of natural justice, and whilst it is undesirable to attempt any general definition of that term with a view to covering the many varied factual and procedural situations which may at any given time come before such tribunal, this is not to say that a tribunal under the “Leadership Code” should be kept in a perpetual quandary as to what standard of proof should apply albeit the ultimate position may lack absolute clarity if it falls somewhere between the criminal and strict civil onus of a mere balance of probabilities.

In our view the appropriate standard of proof required before a Leadership Tribunal may be discerned from the nature of the tribunal itself and the decision it is authorized to make, the gravity of charges relating to misconduct in office by those who are subject to the Leadership Code, the duty to act judicially and the requirement to act in compliance with the principles of natural justice.

There is no absolute standard of proof (Bater v. Bater[dclxiv]³; Hornal v. Neuberger Products, Ltd.[dclxv]⁴; Tcaciuc v. B.H.P. Co. Ltd.[dclxvi]⁵). Standards of proof are impossible of precise distinction by mere words. Judge and jury alike must be “satisfied” of the truth of the allegations or denials. What amounts to satisfaction will vary with the issues involved. The more trivial the question the more easily and swiftly will satisfaction materialize. The more momentous its consequence, the greater the amount of cogent evidence required. The jury should in many civil cases be told not only that they need not remove all doubt from their minds but should also receive direction as to the positive standard of preponderance of evidence or probability. The judge should not be a slave to formulae. See Tcaciuc v. B.H.P. Co. Ltd. (supra).

N1>In our opinion the above passage is particularly relevant in considering the standard of proof to be applied by the Leadership Tribunal.

N1>In Briginshaw v. Briginshaw[dclxvii]⁶ the court there pointed out that the nature of the issue necessarily affects the process by which reasonable satisfaction is obtained. However, in Hornal v. Neuberger Products, Ltd. (supra), Morris L.J. stated at p. 978:

“Though no court and no jury would give less careful attention to issues lacking gravity than to those marked by it, the very elements of gravity become a part of the whole range of circumstances which have to be weighed in the scale when deciding as to the balance of probabilities.”

In Re Dellow’s Will Trusts[dclxviii]⁷, the above passage was approved by Ungoed-Thomas J. who then stated, at p. 773:

“It seems to me that in civil cases it is not so much that a different standard of proof is required in different circumstances varying according to the gravity of the issue, but, as Morris L.J. says, that the gravity of the issue becomes part of the circumstances which the court has to take into consideration in deciding whether or not the burden of proof has been discharged. The more serious the allegation, the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it. This is perhaps a somewhat academic distinction and the practical result is stated by Denning L.J. (Hornal v. Neuberger Products Ltd. (supra)):

‘The more serious the allegation the higher the degree of probability that is required; but it need not, in a civil case, reach the very high standard required by the criminal law.’”

All of these pronouncements are of course in relation to ordinary civil suits. The Leadership Tribunal is charged with inquiring into allegations of misconduct in office by those who are subject to the Leadership Code, which is an offence both under the Constitution and the Organic Law on the Duties and Responsibilities of Leadership. That fact alone indicates that any such allegation will be serious and it carries with it momentous consequences and the appropriate standard of proof must accordingly be a high one. Misconduct in office is not itself a criminal offence but if found carries adverse consequences of the most serious kind. Such a conclusion will depend upon adverse findings of provable facts, and before those findings are made, the decision-maker must be reasonably satisfied by clear and convincing evidence of the occurrence or existence of those facts: see for example per Brennan J. in Minister for Immigration and Ethnic Affairs v. Pochi[dclxix]⁸ and Rejfek v. McElroy[dclxx]⁹.

N1>The Leadership Tribunal is also under a duty to act judicially and is required to act in compliance with the principles of natural justice. It follows from this that the decision of the Tribunal must ordinarily be based on evidence which is reasonably capable of sustaining it. (Minister for Immigration and Ethnic Affairs v. Pochi[dclxxi]¹⁰; Allinson v. General Council of Medical Education and Registration[dclxxii]¹¹; Ashbridge Investments Ltd. v. Minister of Housing and Local Government[dclxxiii]¹²). Implicit in that well-established principle is the requirement that findings of material fact of a statutory tribunal must ordinarily be based on logically probative material and the requirement that the actual decision of such a tribunal must, when relevant questions of fact are in issue, ordinarily be based upon such findings of material fact and not on mere suspicion or speculation: see per Deane J. in Minister for Immigration and Ethnic Affairs v. Pochi[dclxxiv]¹³.

N1>There is a solid body of authority against introducing the criminal standard of proof into civil causes: Hocking v. Bell[dclxxv]¹⁴; Reifek v. McElroy[dclxxvi]¹⁵.

N1>Many standards of proof have been laid down by courts. Proof of adverse facts must be “clear, unequivocal and convincing”: see Woodby v. Immigration and Naturalization Service[dclxxvii]¹⁶; “The tribunal must be comfortably or confidently satisfied that the charges have been made out”; Re Hodgekiss[dclxxviii]¹⁷; “It is enough if from facts admitted or proved a reasonable inference can be drawn”: Hickman v. Peacey[dclxxix]¹⁸; “The onus is upon the petitioner to prove to the entire satisfaction of the Court, the ground relied upon”: In Re Menyamya Open Parliamentary Election[dclxxx]¹⁹; “A degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved”: Rejfek v. McElroy (supra) and Re A Barrister and Solicitor[dclxxxi]²⁰.

N1>All of the above tests may well be useful but in our view there is no absolute degree or standard of proof to be applied by the Leadership Tribunal. The Tribunal must be reasonably satisfied of the truth of the allegations or denials. In reaching such a conclusion it must give full weight to the gravity of a charge of misconduct in office by a person subject to the Leadership Code, the adverse consequences which follow and of the duty to act judicially and in compliance with the principles of natural justice. In practical terms the standard is not as high as the criminal proof beyond reasonable doubt but in our opinion, the very nature of the offence of misconduct in office created by the Constitution and the Organic Law on the Duties and Responsibilities of Leadership, will require a higher standard of proof than that ordinarily applicable in civil cases, namely proof on a balance or preponderance of probabilities. In matters involving accusations amounting to criminal conduct, the standard must be close to that applicable in a criminal trial.

N2>Q(a) “In the case of a count that involves the allegation of what also amounts to a criminal offence, is the standard of proof ordinarily applicable in criminal cases, namely proof beyond any reasonable doubt, the standard that the Tribunal should apply?”

N2>Q(b) “If not, is the standard of proof ordinarily applicable in civil cases, namely proof on a balance or preponderance of probabilities, the standard that the Tribunal should apply?”

N2>Q(c) “If neither, then what standard of proof should the Tribunal apply?”

N2>A. There is no absolute degree or standard of proof to be applied by the Leadership Tribunal. The Tribunal must be reasonably satisfied of the truth of the allegations and it must give full weight to the gravity of a charge of misconduct in office by a person subject to the Leadership Code, to the adverse consequences which may follow and to the duty to act judicially and in compliance with the principles of natural justice. Such satisfaction in matters so grave can never be achieved on a mere balance of probabilities.

N2>Q(d) “In the case of a count other than one as defined in the question numbered (a) what is the standard of proof that the Tribunal should apply?”

N2>Q(e) “Is the following, taken from the headnote in Hornal v. Neuberger Products Ltd. [1957] 1 Q.B. 247, an accurate statement of the law for the Tribunal, namely:

‘... There is no absolute standard of proof, and no great gulf between proof in criminal and civil matters; for in all cases the degree of probability must be commensurate with the occasion and proportionate to the subject matter. The elements of gravity of an issue are part of the range of circumstances which have to be weighed when deciding as to the balance of probabilities.’ ”

MILES J: I agree with the majority judgment but would add a qualification to the first answer. I do not think that it should be finally determined that there may not be cases in which the misconduct alleged and the circumstances are such that the Tribunal may feel that it is prepared to find the allegations established only upon proof beyond reasonable doubt.

v>
R>

[dclxii](1980) 44 F.L.R. 41.

[dclxiii][1971] A.C. 297.

[dclxiv][1950] 2 All E.R. 458.

[dclxv][1956] 3 All E.R. 970.

[dclxvi][1962] N.S.W.R. 830.

[dclxvii](1938) 60 C.L.R. 336.

[dclxviii][1964] 1 All E.R. 771.

[dclxix](1979) 26 A.L.R. 247.

[dclxx][1965] HCA 46; (1965) 112 C.L.R. 517 at p. 521.

[dclxxi](1980) 44 F.L.R. 41.

[dclxxii][1894] 1 Q.B. 750.

[dclxxiii][1965] 1 W.L.R. 1320.

[dclxxiv](1980) 44 F.L.R. 41.

[dclxxv][1945] HCA 16; (1945) 71 C.L.R. 430 at pp. 464, 500.

[dclxxvi](1965) 112 C.L.R. 517.

[dclxxvii](1966) 385 U.S. 276.

[dclxxviii](1962) 62 S.R. (N.S.W.) 340.

[dclxxix][1945] A.C. 304.

[dclxxx][1977] P.N.G.L.R. 298.

[dclxxxi](1979) 40 F.L.R. 1 at p. 21.

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Supreme Court of Papua New Guinea

Mopio, Re [1981] PGSC 14; [1981] PNGLR 416 (19 October 1981)

Papua New Guinea Law Reports - 1981