National Narcotics Bureau v Nauro [2015] PGSC 71; SC1480 (4 September 2015)

SC1480

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV. No. 27 OF 2013

BETWEEN

APPLICATION BY NATIONAL NARCOTICS BUREAU
Applicant

AND

JOHN PATRICK NAURO
First Respondent

AND

PUBLIC SERVICES COMMISSION
Second Respondent

Waigani: Gavara-Nanu J, Kandakasi & Yagi JJ.
2014: 28 & 31 October
2015: 4 September

PRACTICE AND PROCEDURE – Apprehended bias – Appropriate tests – Circumstances in which a judicial officer (judge) should disqualify from hearing a case.

Cases Cited:

Papua New Guinea Cases

Application by Herman Joseph Leahy [2006] PGSC 36; SC981
Gobe Hongu Ltd v. National Executive Council [2000] PNGLR 372; N1964
Joseph Ango and Simon Sipa v. John Mapusa, Acting Director General,
Narcotics Bureau and The Independent State of Papua New Guinea (2013)
N5693
Kwame Okyere Boateng v. The State [1990] PNGLR 342
Peter Yama v. Bank South Pacific (2008) SC921
The Independent State of Papua New Guinea & The Chief Migration Officer,
Rabura Mataio v. The Transferees & Amnesty International SC1451

Other cases cited

AZ v. The Age (No.2) [2013] VSC 436
Carruthers v. Connolly and Ors; Criminal Justice Commission & Anor v. Connolly and Anor – BC9703497; [1998] 1 Qd R 339
Franklin v. Minister of Town and Country Planning [1947] UKHL 3; [1948] A.C 87
Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Metropolitan Properties Co (FCE) Ltd v. Lannon [1968] EWCA Civ 5; [1969] 1 QB 577
Re. Medicaments (No. 2) [2000] EWCA Civ 350; [2001] 1 WLR 700
Webb v. R [1994] HCA 30; (1994) 181 CLR 41

Counsel

N. Gimaia with S. Liria, for the Applicant
B. Boma, for the Respondents

4 September, 2015

1. GAVARA-NANU J: This is an application by the National Narcotics Bureau (applicant) made pursuant to s. 155 (2) (b) of the Constitution to review the decision of the National Court given on 2 August, 2013, which affirmed the decision of the Public Services Commission (PSC) given on 7 February, 2010, to nullify the decision of the applicant to terminate the first respondent from his employment with the applicant, and for the first respondent to be reinstated to his former position with full entitlements. The applicant refused to reinstate the first respondent to his former position.
2. In its grounds for review, the applicant claims that the National Court erred in not considering the failure by the PSC to comply with the procedural requirements set out under s. 18 of the Public Services Management Act 1995, in reaching its decision. The applicant claims that the PSC's failure to comply with these requirements rendered the PSC decision invalid and null and void.
3. The first respondent was an employee of the applicant until his termination on 12 March, 2008. He applied to the PSC to review his termination. As noted, after reviewing the termination, the PSC, on 7 February, 2010, gave its decision in which it nullified the first respondent's termination and ordered his reinstatement to his former position with full entitlements.
4. The main finding the PSC made was that the Acting Director General of the applicant who terminated the first respondent had acted without lawful authority because at the time the Acting Director General terminated the first respondent; his appointment as the Acting Director General of the applicant had expired. The PSC in its decision also said that even if the Acting Director General's appointment had not expired; there were no proper and valid grounds for the Acting Director General to terminate the first respondent.
5. This application was heard by the Supreme Court, of which I was the President, on 28 October, 2014, and the decision was reserved. Sometime later, while I was reading the Review Book, I realized that I had previously dealt with another case, which had similar facts and circumstances as this case. The case is Joseph Ango and Simon Sipa & Or v. John Mapusa, Acting Director General, Narcotics Bureau and Or (2013) N5693. In that case, the plaintiffs were also employees of the applicant. They were terminated by the same Acting Director General of the applicant on 31 October, 2008. The plaintiffs challenged their respective terminations by applying to the PSC to review their terminations. The PSC found the plaintiffs' terminations unlawful and ordered their reinstatements to their former substantive positions with the applicant. The applicant refused to reinstate the plaintiffs, as a result the plaintiffs applied for judicial review seeking an order for mandamus against the applicant. As noted earlier, the main issue the plaintiffs raised in their application for judicial review was that their terminations were unlawful because the appointment of the Acting Director General had expired at the time he terminated them. I considered and determined the issue in my judgment.
6. Consequently, in this case I recalled the parties and informed them of my decision in Joseph Ango and Simon Sipa & Or v. John Mapusa & Or (supra) which I said may make it difficult for me to decide this application on the ground of a reasonable apprehension of bias. The counsel indicated that they had no problems with me deciding the application, but said that in the end it was for me to decide.
7. The issue I am faced with here is whether a fair minded lay member of the public having full knowledge of all the relevant facts would have a reasonable apprehension that I may not be impartial in my decision if I decide this application, given that I have already decided the same issue in Joseph Ango and Simon Sipa and Ors v. John Mapusa, Acting Director General of Narcotic Bureau and Ors (supra), viz; whether the appointment of the Acting Director General of the applicant had expired at the time he terminated the plaintiffs.
8. In deciding whether I should disqualify myself from deciding this application, I have had regard to the principles applied in Gobe Hongu Ltd v. National Executive Council [200] PNGLR 372, N1964, which the Supreme Court adopted with approval in Peter Yama v. Bank South Pacific Limited (2008) SC921. In Gobe Hongu Ltd, Sevua J, adopted a number of principles enunciated by the High Court of Australia in a couple of cases. The first case is Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288. In that case, the High Court in stating the tests a court should apply when deciding apprehended bias said:

"Whether in all the circumstances a fair minded, lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that [the Judge] might not bring an impartial and unprejudiced mind to the resolution of the question in issue."

9. The reasonable apprehension test applied in Livesey was subsequently adopted with approval by the High Court in Webb v. R (1994) 181 CLR 4. In that case, Dean J, in stating the types of situations in which a judge may disqualify himself on the ground of a reasonable apprehension of bias said:

"The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgement. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first [eg, a case where a dependent, spouse or child has a direct pecuniary interest in the proceedings] and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third [eg, a case where a Judge is disqualified by reason of having heard some earlier case: see, eg, Livesey –v- NSW Bar Association (1983) 151 CR 288; Australian National Industries Ltd -v- pedley Securities Ltd (in liq) (1992) 26 NSWLR 411] and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance give rise to the apprehension of bias."

10. In Metropolitan Properties Co (FCE) Ltd v. Lannon [1968] EWCA Civ 5; [1969] 1 QB 577, which is one of the cases cited in Gobe Hongu Ltd, Lord Denning MR in discussing the test applied in the UK for disqualification of a judge on the ground of a real likelihood of bias at 598 said:

"...in considering whether there was a real likelihood of bias, the Court does not look at the mind of the Justice himself......It does not look to see if there was real likelihood that he would or did, in fact favour one side at the expense of the other. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.
Nevertheless, there must appear to be real likelihood of bias.
Surmise or conjecture is not enough."

11. The UK has now adopted the reasonable apprehension test applied by the High Court of Australia in Livesey and Web, for example see, Medicaments (No. 2) [2000] EWCA Civ 350; [2001] 1 WLR 700. The law is settled in this jurisdiction that the proper test for a judicial officer or a judge to apply when deciding whether to disqualify himself on the ground of apprehended bias is whether a fair minded lay member of the public knowing all the relevant facts would have a reasonable apprehension that the judge was biased in his decision. Putting it another way, whether such fair minded person might entertain a reasonable apprehension that the judge might not have had an impartial mind when deciding the issues before him. It should be noted that a reasonable apprehension of bias may relate to either a specific single act or to a cumulative effect of a number of series of acts or matters: AZ V. The Age (No.2) [2013 VSC 436.
12. Having regard to the category of cases or situations discussed in Webb v. R (supra), under which a judge may disqualify himself, this case clearly falls under the second category, in that, I have in the course of deciding Joseph Ango and Simon Sipa & Or v. John Mapusa, Acting Director General, Narcotics Bureau and Or (supra) which had similar facts and circumstances as this case, decided the same issue that arises in this application. Thus, having regard to the principles applied in line of cases discussed above, I have come to a firm view that, if I decide this application, a fair minded member of the public who knew that I have in a similar case, determined the validity of the appointment of the Acting Director General of the applicant, and the actions he took in terminating certain employees of the applicant, which happened at the same time he terminated the first respondent in this case, would have a reasonable apprehension that I was not impartial in my decision or that my decision was prejudiced or influenced by the conclusion I reached in Joseph Ango and Simon Sipa & Or v. John Mapusa, Acting Director General, Narcotics Bureau and Or (supra): See, Application of Herman Joseph Leahy (2006) SC981.
13. Mr. Gimaia of counsel for the applicant also submitted in the alternative that because the issue before the Court is limited to the PSC not complying with the procedural requirements under s. 18 of the Public Service Management Act, 1995, I should not disqualify myself.
14. Having considered the materials before the Court, especially the decision of the PSC, it is clear that the annulment of the first respondent's termination by the applicant was mainly based on the view that the appointment of the Acting Director General of the applicant had expired at the time he terminated the first respondent. This is the same issue I determined in Joseph Ango and Simon Sipa & Or v. John Mapusa, Acting Director General, Narcotics Bureau and Or (supra). That aspect of the PSC decision cannot be ignored by this Court and deal only with procedural issues, the PSC decision must be considered as a whole.
15. In deciding whether there are basis for a reasonable apprehension of bias being held against me if I decide the issue before the Court, the test is an objective one, in that, it is incumbent on me to consider all the facts and circumstances that gave rise to the issue of apprehended bias. I have to consider the issue not from my perspective, but from the perspective of a fair minded lay member of the public having full knowledge of all the relevant facts and circumstances: Metrpolitan Properties Co. (FCE) Ltd v. Lannon (supra). Applying such objective test, I perceive two important compelling considerations weighing in favour of disqualifying myself. The first consideration is prejudgement of the issue regarding the legality of the appointment of the Acting Director General of the applicant because of my decision in Joseph Ango and Simon Sipa and Others. The second consideration is that my decision in this application would be prejudiced in favour of the conclusion I reached in Joseph Ango and Simon Sipa & Or v. John Mapusa, Acting Director General, Narcotics Bureau and Or (surpa). These two considerations may overlap but they have significantly distinct effects.
16. The general underlying principle that should guide a judge who is faced with a situation where he has to decide whether to disqualify himself on the ground of a reasonable apprehension of bias is that it is of paramount importance for the parties to litigation and the general public to have full trust and confidence in the court. At the core of this general principle lies the fundamental principle that the integrity and impartiality of the court, which has the duty to administer justice, must not be allowed to be called into question: Carruthers v. Connolly and Ors; Criminal Justice Commission & Anor v. Connolly and Anor – BC9703497: [1998] 1 Qd R 339. A judicial officer must in the eyes of the general public, or the people, who are the source of his power, maintain and display a standard of even-handed justice between disputing litigants. Thus, where there is a clear reason or ground for a reasonable apprehension of bias to be entertained against a judge, it would be incumbent on the judge to disqualify himself, for the reason that his integrity and impartiality is already in question. A judge must come to his adjudication with an independent mind, without any inclination or bias towards one side or the other in the dispute: Franklin v. Minister of Town and Country Planning [1947] UKHL 3; [1948] A.C 87. A fundamental and basic principle of administration of justice that, justice must not only be done but be seen to be done, should always guide a judge who is faced with the issue of apprehended bias: Kwame Okyere v. The State [1990] PNGLR 342 and The Independent State of Papua New Guinea & The Chief Migration Officer, Rabura Mataio v. The Transferees & Amnesty International SC1451.
17. So, having regard to the above principles, the question I need to ask myself is – Is there a basis that a fair minded lay member of the public, having full knowledge of all the relevant facts would or might have a reasonable apprehension of bias against me if I decide this application? The answer is in my opinion very clearly in the affirmative.
18. For these reasons, I now disqualify myself from deciding this application. I will leave it to the remaining two members of the Court to put the requirements of s. 3 of the Supreme Court Act, Chapter No. 37, to the parties at a time convenient to the Court and the parties.

Orders accordingly,

____________________________________________________________
Liria Lawyers: Lawyers for the Applicant
Boma Lawyers: Lawyers for the Respondents