Zeming v Hinchcliffe [2008] PGSC 40; SC952 (30 October 2008)

SC952

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM No. 2 of 2006

BETWEEN:

Mao Zeming
Appellant

AND:

Justice Timothy Hinchcliffe, CBE
First Respondent

AND:

Frank Manue
Second Respondent

AND:

Patrick Monouluk
Third Respondent

Waigani: Salika J., Davani J & Lay JJ
2007: 2nd May
2008: 30th October

SUPREME COURT- appeal - judicial review - procedural error - remedy

ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERS ("LEADERSHIP CODE") S 21(6) - evidence admitted contrary to provision of Leadership Code

Facts

During the hearing of a referral of charges to a Leadership Tribunal evidence of the Leader’s response to the Ombudsman Commission was admitted into evidence without the consent of the Leader contrary to the provisions of s21(6) of the Organic Law on the Duties and Responsibilities of Leaders. The National Court found that the Tribunal had fallen into error but declined relief on the basis that there was sufficient other evidence to support the Tribunal’s conclusions.

Held (Salika and Lay JJ)

1. In assuming the inevitability of an outcome the court is pre-judging or re-weighing the decision to be made by the Tribunal and thus may be in danger of overstepping the bounds of its reviewing function by entering into the merits of the decision itself;
   
2. A reviewing judge must be very careful before refusing certiorari against a tribunal vested with judicial functions. There must be careful consideration of the nature of the error made and whether the nature of the error may have affected the end result. Where the error affects the nature of the evidence on which the tribunal must base its findings of fact or law, the reviewing judge must be confident that the error did not affect the decision which was in fact made before refusing relief;
   
3. In a rare case where the facts are clear, the issue succinct and the evidence concise a reviewing judge may be justified in coming to the conclusion that if the error had not occurred no other conclusion than the one reached by the tribunal could have been reached.
   
4. Appeal allowed. Decision of the National Court and the Tribunal set aside. Liberty granted to the Public Prosecutor to apply to the Chief Justice to establish another tribunal to rehear the referral.
   

Davani .J (Dissenting)

5. Even when an error is established, that the discretion to grant certiorari must be exercised with caution and in appropriate cases only, taking into account the sum effect of all considerations.
   
6. The appellant was not denied natural justice because he alone, chose not to call further evidence or object to the documents that were tendered.
   
7. The power to quash the Tribunal’s decision is discretionary and it must be exercised with caution, again, taking into account the sum effect of all considerations.
   
8. All of the trial judge’s decision must be read in totality rather than singling out ‘rogue’ paragraphs or sentences.
   
9. Appeal must be dismissed.
   

Cases Cited:

PNG Cases

Central Pomio Logging Corp. Pty Ltd v The State [1992] PNGLR 20 at 25
Andrew Posai [1995] PNGLR 350 at 353
Timothy Bonga v Hon. Justice Maurice Sheehan [1997] PNGLR 452
Mision Asiki v Manasupe Zurenuoc (2005) SC797.

Overseas Cases Cited

Re Beer and Australian Telecommunications Commission [1990] AAT No. 5974.
Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286
Re Golem and Transport Accident Commission [2002] VCAT 319

References

De Smith, Woolf and Jowell Judicial Review of Administrative Action, 5th edition
Organic Law on the Duties and Responsibilities of Leaders

Counsel

H. Leahy, for the appellant
No appearance for the respondents

30 October, 2008

1. SALIKA J AND LAY J: Mr Zeming is the former member of the National Parliament for the Tewae-Siassi Open Electorate. He was brought before a Leadership Tribunal constituted by the respondents which recommended his dismissal from office after finding him guilty on 9 of 12 allegations of misconduct in office. The recommendation was accepted by the Head of State and came into effect.
   
2. Mr Zeming sought judicial review by the National Court of the decision of the Leadership Tribunal and that review dismissed his application with costs. He appeals from that decision.
   
3. The Appellant's ground of review was that the Leadership Tribunal wrongly admitted into evidence Mr Zeming's response to the Papua New Guinea Ombudsman Commission's allegations against him. This was in direct contravention of the provisions of the Organic Law on the Duties and Responsibilities of Leaders ("Leadership Code") s 21(6) which provides that no statement or evidence given in the course of an Ombudsman investigation can be given in evidence against any person.
   
4. The trial Judge found that Mr Zeming's response to the Papua New Guinea Ombudsman Commission was not in evidence before the Leadership Tribunal, but that the leadership tribunal had nevertheless wrongly relied upon it in reaching its decision. However, he found that "... the breach of s 21(6) did not result in any real and substantial injustice to the Plaintiff" and for that reason declined to quash the decision of the Tribunal.
   
5. The issues, which fall for us to determine, from the grounds of appeal, are:
   

A. Was Mr Zeming's reply to the Ombudsman in evidence before the Leadership Tribunal?

B. If Mr Zeming's reply was before the Leadership Tribunal as evidence was it lawfully before it?

C. Did the Leadership Tribunal have reference to Mr Zeming's reply to the Ombudsman in making its decision?

D. If Mr Zeming's reply to the Ombudsman was in evidence before the Leadership Tribunal unlawfully and the Tribunal had reference to it in making its decision, should the relief be granted, which was refused by the National Court, to quash the findings and recommendations of the Tribunal?

6. We will address those questions in the order set out. Before going on we note that we did not have the assistance of counsel for the Respondents. No one from the office of the Solicitor General appeared when the matter was called at 9:30 a.m. We stood the matter over to 3 p.m. and directed counsel for Mr Zeming to serve notice on the Solicitor General, which was done at about 12:30 p.m. as appeared from the affidavit of service filed by staff of the lawyer on record for Mr Zeming. As there was still no appearance from the Solicitor General's office at 3 PM we proceeded to hear counsel for Mr Zeming.
   

Was Mr Zeming's reply to the Ombudsman in evidence before the Leadership Tribunal?

7. In the decision appealed from the trial judge said:
   

"The Plaintiff's Statement of Reply which has some 42 appended documents was not one of those documents sought to be formally tendered and they were not formally admitted into evidence and marked as exhibits."

We are satisfied that this observation is an error as the transcript of evidence at pages 132, 136, 150 and 153 of the Appeal Book shows that in fact, the Leader's Statement in Reply, which was document 108, was tendered into evidence and marked Exhibit 108 as part of the affidavit of counsel for the Ombudsman. Each of the annexures to the reply was also marked as an exhibit.

Was Mr Zeming's reply to the Ombudsman lawfully before the Leadership Tribunal?

8. The Leadership Code Section 21 (6) provides as follows:
   

"(6) Except on the trial of any person for perjury in respect of his sworn testimony, no statement made or answer given by that or any other person in the course of any inquiry by or any proceedings before the Commission or other authority is admissible in evidence against any person in any court or at any inquiry or any other proceedings, and no evidence in respect of proceedings before the Commission or other authority shall be given against any person."

9. The provision has been the subject of previous judicial comment, but not by the Supreme Court. Kapi DCJ (as he then was) examined Section 21 (6) and related provisions in the case of Timothy Bonga v Hon. Justice Maurice Sheehan [1997] PNGLR 452. His Honour made three points and we, with respect, agree with them. The first is that Leadership Code Section 27 (2), in providing that the Ombudsman's Statement of Reasons can be provided to the Tribunal, is referring only to the statement of reasons and not to the evidence by which the Ombudsman arrived at those reasons. The second point is that Section 21 (6) puts that conclusion beyond any doubt. The third point is that the Tribunal is free to call the same evidence on which the Ombudsman relied through witnesses who can properly produce it.
   
10. The trial judge in this case observed that:
    

"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 s21 (6) to exclude documents in the Statement of Reasons": Mao Zeming v Hinchliffe & Ors N2998 (Injia DCJ) at p14.

11. With respect, we cannot fully agree with that statement. We agree that the practice has developed that the proceedings are conducted in an adversarial manner. And as the Ombudsman is given the investigative role, and the Tribunal is given no investigative staff, generally the only practical way for the Tribunal to proceed is to rely on the Public Prosecutor to assist the Tribunal by calling such evidence provided by the Ombudsman as he considers will prove the allegations. We acknowledge, as was said by the Tribunal in Re Golem and Transport Accident Commission [2002] VCAT 319 that:"... the closer one gets to something resembling an adversarial contest with experienced counsel representing the parties, the closer one gets to the system applied in the courts and the greater the reluctance on the part of the Tribunal to interfere and impose its own inquisitorial directions".
    
12. However, when a constitutional law such as s 21(6) of the Leadership Code, directly prohibits the reception of a class of documents, it is the role of the Tribunal, just as it is the role of a judge on a trial, to ensure that only legally admissible evidence is placed before it. A clear statement of the law in relation to this issue in criminal trials is contained in Awoda v The State [1984] PNGLR 164 per Kapi DCJ, Pratt and Bredmeyer J. J. where the court said:
    

"Irrespective of whether or not counsel objects to the admission of certain evidence, it has been said that there is an overall duty in the trial judge to ensure that only legally admissible evidence goes into the record of the trial... we feel that such a view of the law when applied from day-to-day with discretion is particularly apposite to the present circumstances of the country. Such a duty of course, is greatly assisted if the prosecution tenders proper evidence.

We deplore any conduct on the part of counsel which encourages the admission of evidence prejudicial to his client’s case in the hope that at the end of the trial some sort of advantage might be made from such course because the court and opposing counsel had been put off their guard, yet the evidence is known by counsel for the defence to be clearly inadmissible."

13. In particular, it must be the role of the Tribunal to ensure that documents, whether statements or other evidence, referred to in Leadership Code Section 21 (6) as being prohibited from admission into evidence, are not admitted into evidence. Statements and evidence which that section prohibits cannot come lawfully before the Tribunal and the section rendered meaningless simply because no objection was taken to their admission.
    
14. We agree with the observations of the trial judge that Section 21(6) "is worded in mandatory terms...there is no discretion in the tribunal, of its 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." And we would add, through a witness who can give evidence from personal knowledge, except in circumstances where the tribunal considers it may be informed by indirect evidence.
    
15. We are reluctant to leave this point without digressing to observe that the duty placed upon the Tribunal by Section 27 (4) of the Leadership Code, is to "make due inquiry...and inform itself in such manner as it thinks proper..." Where a Tribunal believes that the evidence called by the Public Prosecutor and the leader is insufficient for it to reach a conclusion, the Tribunal may call for evidence, indeed it has an obligation to call such other evidence as it may consider is available to assist in its deliberations. And we quote with approval the observations of Australian Administrative Tribunal, Deputy President Forgíe:
    

"There are various ways in which the Tribunal may use its inquisitorial powers. They range from questioning the party's witnesses, to asking the parties to procure or produce further material, to producing documentary material from its own research. In a rare case, it may call its own witnesses." Re Beer and Australian Telecommunications Commission [1990] AAT No. 5974.

16. What occurred in this case was that counsel for the office of the Public Prosecutor sought to tender the affidavit of Mr Cannings (as he then was). Counsel for Mr Zeming indicated that he had no objection. Then counsel for the office of the Public prosecutor drew attention of the Tribunal to paragraph 6 of that affidavit which referred to a large number of exhibits which were to be placed in evidence as part of the affidavit and counsel formally tendered two volumes of those documents. The first volume contained documents used by the Ombudsman in its investigation, the second volume the response of Mr Zeming. Counsel for Mr Zeming then said (at page 132 line 30 of the Appeal Book) "... we have objections... the objection is in terms of paragraph 6 where Mr Cannings states there that the purpose of the affidavit are of verifying those documents that have been identified and bringing them into evidence...". Counsel then went on to develop two arguments for the basis of his objection. After ruling against the submissions the Tribunal went on to allocate exhibit numbers to all of the documents exhibited with Mr Cannings' affidavit. At no stage in the proceedings did counsel for Mr Zeming consent to the admission of the Leader’s response. We think it is not to the point that he failed to take objection again, whether by inadvertence or deliberate design. He did not explicitly consent to the admission of the documents exhibited to Mr Cannings affidavit and that was the only way those documents could be lawfully placed before the Tribunal without calling a witness who could identify the document from his own knowledge.
    
17. Therefore we agree with the trial judge and we find that Mr Zeming's response and the supporting documents were illegally before the Tribunal and could not be relied upon by it. It must follow that the bulk of the other documents, which were not within the personal knowledge of Mr Cannings as to the accuracy of their contents, could also not be admitted into evidence in the fashion that they were.
    

Did the Leadership Tribunal have reference to Mr Zeming's reply to the Ombudsman in making its decision?

18. There is no doubt that the Tribunal did have reference to Mr Zeming's reply to the Ombudsman. The Leader submits that the reasons of the Tribunal show that it had reference to the contents of Exhibit 108 in formulating its reasons for its decision in respect of allegation 1 (i), 1 (iv), 4, 5, 7, 8, 9, 10, 11 and 12: see appeal book volume 1, page 46 line 20 through to page 58 line 45, which were all of the allegations on which Mr. Zeming was found guilty.
    
19. The Leader did not give evidence. Therefore any reference in the Tribunal’s decision to explanations by the Leader can only be references to Exhibit 108. We accept that the Tribunal had reference to Exhibit 108 in deciding grounds 1, 4, 5, 8, 9, 10 and 11.We reject the submission in respect of allegation 12, that the references in the Tribunal’s decision to "the leader did not explain why" are references to Exhibit 108. It is a matter of fact that the Leader did not give evidence, ergo, he did not give any explanations.
    

If Mr Zeming's reply to the Ombudsman was in evidence before the Leadership Tribunal unlawfully and the Tribunal had reference to it in making its decision, should the relief be granted, which was refused by the National Court, to quash the findings and recommendations of the Tribunal?

20. Even though an applicant for judicial review has been successful in establishing that there has been an error of law, it is a separate step to establish that a remedy should be granted by the court. The grant of a remedy is not automatic and is always within the discretion of the court and will only be granted to avoid injustice: see Mision Asiki v Manasupe Zurenuoc (2005) SC797.
    
21. However, a reviewing judge must be very careful before refusing certiorari against a tribunal vested with judicial functions. There must be careful consideration of the nature of the error made and whether the nature of the error may have affected the end result. Where the error affects the nature of the evidence on which the tribunal must base its findings of fact or law, the reviewing judge must be confident that the error did not affect the decision which was in fact made before refusing relief. In a rare case where the facts are clear, the issue succinct and the evidence concise a reviewing judge may be justified in coming to the conclusion that if the error had not occurred no other conclusion than the one reached by the tribunal could have been reached.
    
22. Failure to comply with a time limitation may cause no real prejudice, as was held by the Privy Council in Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286 (PC). There it was held that to quash the decision would deprive the Government of revenue and pass on to the other taxpayers the burden of Government expenditure. The error in not complying with a statutory time limitation had no effect on the body of the evidence considered, the fundamental rights of Mr Wang and the merits of the decision.
    
23. In assuming the inevitability of an outcome the court is pre-judging or re-weighing the decision to be made by the Tribunal and thus may be in danger of overstepping the bounds of its reviewing function by entering into the merits of the decision itself: See De Smith, Woolf and Jowell Judicial Review of Administrative Action, 5th edition, at paragraph 20-114. Where the error of the Tribunal is simply going outside a time limit, or some other procedural error which does not affect the right of the applicant to natural justice, nor substantially alter the body of the evidence on which the decision is made, or there are clear admissions that allegations are not contested, as in Timothy Bonga v Hon. Justice Maurice Sheehan & Ors (supra) then the Court can be justified in finding that it should not give relief because the error has not visited any substantial injustice upon the applicant.
    
24. Where the error places before the Tribunal a substantial body of evidence which was not lawfully before it, it is unfair to the applicant for the reviewing court to perform a re-weighing and reanalysis exercise. It is unfair to call on a person to defend evidence which is not lawfully before the Tribunal. It is unfair to attempt any reweighing of the remaining evidence when the applicant has not been heard on that substantially different body of evidence. As Kapi DCJ, as he then was, said in Central Pomio Logging Corp. Pty Ltd v The State [1992] PNGLR 20 at 25 "the court cannot interfere as an appellate authority would but only as a judicial authority concerned to see whether the Tribunal has contravened the law by acting in excess of its powers". Or as Sheehan J. put it in the case of Judicial Review Application by Andrew Posai [1995] PNGLR 350 at 353:
    

"But it is vital that the court, in exercising the power of review, keeps in mind that its role is one of supervision only; that is to say, a role to ensure fairness by public authorities in the exercise of their powers, bearing in mind, that it is the public authority that retains, at all times, the Parliament authorised power of decision".

25. This passage was quoted with approval by Kapi DCJ (as he then was) in SCM 2 of 2002, Peter Peipul v Hon Justice Sheehan & 2 Ors, 24th May 2002 at p 6.
    
26. In the Posai case Sheehan J cited from the case of Constable of North Wales Police v Evans [1982] UKHL 10; [1982] 1 WLR 1155 at 1160:
    

"... it is important to remember in every case that the purpose of (judicial review) is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question".

27. And in the text, Judicial Review of Administrative Action, De Smith, Woolf and Jowell, Sweet & Maxwell, 5th Ed. Para. 20-032 the learned authors say, with reference to authority that:
    

"...in determining what is ‘the fair and just thing to do or order in the instant case’ the judge must not ignore the practical consequences of his decision. For example, he must certainly pause before coming to the conclusion that there is no purpose in ordering a rehearing because the result would inevitably be the same. What is confidently expected is by no means always that which happens. It is very easy for a judge to convince himself that he knows what case can or would be put but it must not be forgotten that justice must not only be done but must be seen to be done. The court must be particularly sensitive to the individual’s fundamental rights."

28. There are in the documents relied upon by the Ombudsman Commission and the Public Prosecutor in this matter, as appears from the index at Appeal Book pages 505 to 513, 262 documents of which only 2 originate from the Ombudsman in respect of which Mr Cannings could give evidence from his own knowledge. The balance of the documents come from other organisations and would require witnesses from those organisations to identify them, if not admitted by consent.
    
29. The removal of 262 documents plus all of the annexures to Exhibit 108, a further 137 documents, a total of 399 documents, from the body of evidence available to the Tribunal, makes a very considerable difference to the body of evidence. It would be necessary for the reviewing court to completely reassess and reweigh the evidence in respect of each allegation and come to its own decision as to whether there was sufficient evidence to support the conclusion reached by the Tribunal. And having reached a decision on the merits of each of the allegations, then the Court would need to reweigh those conclusions again to consider whether or not they support the decision on penalty. That process we conclude is an entry into the merits of the decision, which is outside and not part of the process of judicial review.
    
30. We are very mindful of the fact that the Supreme Court has said on a number of occasions that the purpose of the Leadership Code is to protect the people from bad leaders. And there will no doubt be those who will say that the result of this decision is to ‘let off’ a leader who has had very serious allegations of financial impropriety levelled against him. To those people we would say this, an allegation is simply an allegation until it is proven according to law. Each one of us is entitled to be tried according to law. The Constitution guarantees each one of us the full protection of the law: see Constitution s.37(1).We are a nation of laws and this is what lifts us up to be a civil society. If once we find a man guilty because of our certainty of his guilt, which has not been proven according to law, we cease to be that civil society of law our founding fathers envisaged us to be by virtue of our Constitution and the law.
    
31. A large body of evidence was let in by the Tribunal which the Leadership Code dictates be kept out, for sound reasons. Evidence which went into the Tribunal hearing simply because it was part of the Ombudsman’s investigation and reasons denied the Leader of the opportunity to challenge the evidence on any ground he considered relevant through a witness who would have first hand knowledge of the facts. Generally speaking, there were only two ways the documentary evidence could be let in, by the explicit consent of the Leader or by the Tribunal through a witness able to identify the document. Neither occurred. Withdrawing that substantial body of evidence requires a complete reweighing of the evidence to find out if there is still sufficient evidence to make a finding of guilty on each allegation. That is not the role of the Court. That role is given to the Leadership Tribunal. The Court’s role is simply supervisory, to ensure the Tribunal follows the rules. In this case it did not.
    
32. For those reasons we allow the appeal. We order that the decision of the National Court be set aside and the decision of the Tribunal be quashed. Leave granted to the Public Prosecutor to seek appointment of a further tribunal by the Chief Justice to rehear the reference. Costs follow the event.
    

_______________________________

33. DAVANI .J (dissenting): I refer to the decision by my learned brothers and point out that I agree that the four issues posed therein are issues for determination by the Supreme Court. However, with respect, I do not agree with the reasons provided, only discussing issues 1, 2 and 3.

Issue no. 1

Was Mr Zeming’s reply to the Ombudsman Commission in evidence before the Leadership Tribunal?

34. I do not agree with the conclusions reached by my brothers. I say this because the quoted statement by the trial judge, which is set out in full by my brothers, and which is at pg. 5 of the trial judge’s published reasons, is a reference to the events of 12th and 13th March, 2003, that on that day Mr Cannings "sought to formally tender 101 of the 108 sets of documents. The Tribunal accepted each document into evidence and marked them as exhibits. The plaintiff’s statement of reply which had some 52 appended documents, was not one of those documents sought to be formally tendered and they were not formally admitted into evidence and marked as exhibit".

35. My brothers found that the trial judge’s observation is an error because the plaintiff’s statement of reply was in evidence before the tribunal and was marked exhibit 108. I am of the view that the trial judge’s observations was not an error because he clarifies this at pg. 8 of his reasons where he said, that s.21(6) of the Organic Law on the Duties and Responsibilities of Leaders (‘OLDRL’), the procedural rules of evidence on admissibility, is wide enough to include all witnesses’ Statements including documents supplied by witnesses, contained in the Statement of Reasons prepared by the Ombudsman Commission. The evidence is that the Statement of Reasons is the document from which the Public Prosecutor drafted the charges and although it is not ‘evidence’ before the Tribunal, it is ‘presented’ to the Tribunal together with the charges to found the Tribunal’s jurisdiction. His Honour found that s.21(6) is wide enough to include all witnesses’ Statements including documents supplied by witnesses contained in the Statement of Reasons prepared by the Ombudsman Commission.

36.On the transcripts from pgs. 153 to 167, the Chairman of the Tribunal accepts exhibit 108 together with attachments and marks them as exhibits. The trial judge said, at pgs. 9 and 10 of his reasons;

"By virtue of s.21(6), there is no discretion in the tribunal, of its 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. A breach of this rule may vitiate the entire proceedings. Judicial review is available to remedy this kind of procedural breach: Kekedo v Burns Philp (NG) Ltd [1988-89] PNGLR 172."

37. His Honour held further at pgs. 9 and 10 that;

"In the case of documents contained in the Statement of Reasons, they are not "evidence" before the Tribunal. However, for practical convenience and to avoid unnecessary cost, the prosecution may wish to tender before the tribunal as "evidence" any of the documents appended to the Statement of Reasons. Where the prosecution intends to rely on any document contained in the Statement of Reasons, it is open for the prosecution to seek or apply to have each and every document tendered into "evidence" before the tribunal in order for the tribunal to determine their admissibility and more importantly, to give opportunity to the leader to raise any objection as to their admissibility ..."oHow

38. Therefore, the Statement made by the trial judge is a reflection of his reasons, parts of which I have set out above. I find he did not err.

Issue no. 2

Was Mr Zeming’s reply to the Ombudsman lawfully before the leadership Tribunal?

39. I agree that it is the role of the Tribunal, just as it is the role of a Judge on a trial, to ensure that only legally admissible evidence is placed before it and further that it must be the role of the Tribunal to ensure that documents, whether statements or other evidence referred to in s. 21 (6) of the Organic Law on the Duties and Responsibilities of Leaders (‘Leadership Code’) as being prohibited from admission into evidence, are not admitted into evidence. My brothers say and I agree that s. 21(6) of the Leadership Code would be rendered meaningless simply because no objection was taken to it's (i.e. Mr Cannings’ affidavit) admission. They went on to find that the appellant’s response and the supporting documentation were illegally before the Tribunal and could not be relied on and that therefore the bulk of the other documentation which were not within the personal knowledge of Mr Cannings should also not have been admitted into evidence. But were these documentation relied upon by the Tribunal?

40. First, with respect, the trial judge did consider the importance of s. 21 (6) of the Leadership Code. He said the following at pgs. 17 and 18 of his reasons for decision;

"The plaintiff’s counsel did not object under s. 21 (6) on all those occasions but the Tribunal in the discharge of its constitutional function and the exercise of its inherent discretion should have picked out this anomaly in the State’s case instead and pointed out s. 21 (6), invited the plaintiff to be heard on this point and determine its admissibility. Instead the Tribunal proceeded to consider the evidence contrary to the mandatory requirements of s. 21 (6). In my view the Tribunal erred in considering the plaintiff’s statement which was inadmissible and was never part of the evidence before the Tribunal. The leader was not heard on this piece of evidence. Consequently, a breach of natural justice occurred...

At the same time, the question of whether the Tribunal’s decision ought to be quashed by way of judicial review of certiorari for this fundamental breach of procedure is discretionary. This discretion is exercised with caution, and in appropriate cases, taking into account the sum effect of all relevant considerations. In relation to application for Judicial Review of decisions of Leadership Tribunal’s on grounds of breach of prescribed procedure designed to afford natural justice to parties, the decision should not be readily quashed unless the procedural manner in which the entire proceedings were conducted by the Tribunal which resulted in some real and substantive injustice caused to the plaintiffs in terms of denying natural justice...

Abundant and strong are the evidence, both documentary and oral evidence, evidence other than the plaintiff’s statement of reply, was placed before the Tribunal by the Prosecution. The Prosecution also adduced evidence in cross-examination of the witnesses produced by the leader... The leader chose not to give evidence himself to rebut the evidence and the charges. Although that is his right to do so, it would be reasonable for any reasonable member of the public attending the Tribunal and the Tribunal to expect him to respond and rebut the case against him. By his own silence on the face of strong accusation and evidence lent support to the Prosecution case. The plaintiff was represented by counsel and given sufficient opportunity to be heard at every important phase of the inquiry from the commencement of the inquiry when the charges were presented, during presentation of the evidence and during submission on both the procedure and the evidence and on the law.

In my view, it was open for the Tribunal to have reached the same conclusion it did, both in law and on the totality of the evidence on all the charges. I consider that the breach of s. 21 (6) did not result in any real and substantial injustice to the plaintiff. For those reasons, I decline to quash the Tribunal’s findings...". (My emphasis)

41. Appellant’s counsel did not object to the tendering of exhibit "108" and the trial Judge’s reasons outlined above is a reflection of that. Therefore, Mr Cannings’ affidavit and other supporting documentation could not have been illegally before the Tribunal. Additionally, the leader could have called evidence to rebut the evidence put before the Tribunal by the prosecution, but he chose not to do that.

Issue no. 3

Did the Leadership Tribunal have reference to Mr Zeming's reply to the Ombudsman in making its decision?

42. I agree with my brothers that the Tribunal did have reference to the appellant’s reply to the Ombudsman. The Tribunal’s reasons show this. (see Appeal Book Vo. 1 pg. 46, line 20 through to pg. 58 line 45 which were all of the allegations on which the appellant was found guilty). The trial Judge said that the Tribunal did err in that respect and that even where or when an error is established, that the discretion to grant certiorari must be exercised with caution and in appropriate cases only, taking into account the sum effect of all considerations.

43. The issue here is whether the plaintiff was denied natural justice in the manner in which the proceedings were conducted by the Tribunal. I agree with the trial Judge that the appellant was not denied natural justice, that through his counsel, all materials, including the Ombudsman’s reply were put before the Tribunal. Furthermore, that it was the appellant who refused or chose not to give evidence.

44. In this case, the Tribunal did comply with principles of natural justice. The leader had the opportunity to be heard and did present his case in the manner he wanted to.

45. I note the authorities cited by my brothers and the principles held therein and agree whole heartedly that those are sound, established principles which any court of law, must comply with.

46. But I do not agree with my brothers in their conclusions that "a large body of evidence was let in by the Tribunal which the Leadership code dictates, be kept out, for sound reasons." (pg. 12 of Reasons for decision). They said further;

"Evidence which went before the Tribunal hearing simply because it was part of the Ombudsman Commission’s investigations and reasons denied the Leader of the opportunity to challenge the evidence on any ground he considered relevant through a witness who would have first hand knowledge of the facts ...".

47. In that case, the Leader had the opportunity to object to that evidence, but chose not to. He cannot now come back and have a second bite at the cherry when that opportunity was always there.

48. In any event, as the trial judge held, the findings of guilt was not made on Mr Cannings’ affidavit alone, but also on other evidence that was available to the Tribunal.

49. At no time did the trial judge "confuse" himself as demonstrated in the appellant’s lawyers’ written submissions at pars. 4.9 to 4.18. With respect, the trial judge’s decision must be read in totality rather than the singling out of "rogue" paragraphs or sentences.

50. I accept the trial judge’s decision that the power to quash the Tribunal’s decision is discretionary and that it must be exercised with caution. The balancing factor in this case is whether the Leader was denied natural justice. In my view, he was not.

51. For those reasons, I uphold the trial Judge’s reasons and will dismiss the appeal.

_________________________

Herman Leahy Lawyers: Lawyers for the Appellant
No appearance for the Respondents