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• SC1593
  PAPUA NEW GUINEA
  [IN THE SUPREME COURT OF JUSTICE]

  SCA NO. 1 OF 2015

  BETWEEN:
  HON. PATRICK PRUAITCH
  Appellant

  AND:
  CHRONOX MANEK, JOHN NERO & PHEOBE SANGETARI, The
  Ombudsman Commission
  First Respondent

  AND:
  JIM WALA TAMATE, The Public Prosecutor
  Second Respondent

  AND:
  HON. DEPUTY CHIEF JUSTICE GIBBS SALIKA, SENIOR
  MAGISTRATES PETER TOLIKEN & NERRIE ELIAKIM, comprising
  the Leadership Tribunal
  Third Respondent

  AND:
  THE INDEPENDENT STATE OF PAPUA NEW GUINEA
  Fourth Respondent

  Waigani: Manuhu, J, Murray, J & Pitpit, J
  2015: 16th December
  2017: 9th June

  PRACTICE AND PROCEDURE – Discovery – Appellant sought discovery of
  Ombudsman Commission’s investigation documents – National Court Rules,
  Order 9 Rules 5, 7 & 16 – Public Interest – Private Interest – Maturity of
  cause of action – Merits of cause of action.

  Cases cited

  Wartoto v. The State (2015) SC 1411,
  Nilkare v Ombudsman Commission [1999] PNGLR 333,

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• Albert Karo v Ombudsman Commission of PNG [1995] PNGLR 547
  The State v Paul Loi (2009) N4058,
  Hon Pruaitch v Manek (2009) N3903.

  Counsel:

  Mr. M Varitimos & Mr. P Tabuchi, for the Appellant
  Mr. M Efi, for the First Respondent
  Mr. L Kandi, for the Second, Third & Fourth Respondents.

  9th June, 2017

  1. BY THE COURT: INTRODUCTION: This is an appeal against a
  ruling by Kassman J refusing a motion for discovery under Order 9 Rules 5 and
  7 of the National Court Rules. The motion was made in conjunction with a
  proceeding commenced by way of an originating summons (“The OS
  proceeding”) filed by the Appellant where he sought, among others, a
  declaration that his referral was unconstitutional, in excess of jurisdiction and
  therefore illegal, invalid and of no force or effect because the Ombudsman
  Commission (“The Commission”) did not accord to him the right to be heard
  before making the referral.

  The Facts

  2. The Appellant, as a Leader for the purpose of the Leadership Code, was
  investigated for misconduct in office, including double dipping of transport
  operational costs. In the course of the investigation, he appeared before the
  Commission and made oral submissions in response to the allegations. The
  Appellant on 30 November 2006 submitted his detailed written response to the
  allegations.

  3. The Commission then summoned Mr. Kanawi Pouru in his capacity as
  Managing Director of PNG National Forest Authority (“PNGNFA”) to give
  evidence and produce documents relevant to the investigations. Mr Pouru
  responded and produced documents in accordance with the summons.

  4. The Commission then advised the Appellant on 22 July 2009 that there
  was evidence of misconduct in office and that he would be referred to the Public
  Prosecutor for prosecution. The referral was made and a tribunal was
  empanelled to deal with the allegations.

  5. The crux of the substantive proceeding is that the Commission’s decision
  to refer and the eventual referral of the Appellant to the Public Prosecutor is
  flawed and invalid in that he was not accorded the right to be heard in relation

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• to the materials that were subsequently produced by Mr. Pouru.

  6. The motion then sought pursuant to Order 9 Rule 5 to discover
  “documents relating to the investigation”. In the alternative, the motion sought
  an order pursuant to Order 9 Rule 7 for the defendants to file an affidavit stating
  whether any minutes of meetings relating to any investigations into the
  allegations is or has been in their possession, custody or power and, if they have
  been but is not then in their possession, custody or power, when they parted
  with them and what has become of them. Interestingly, the Appellant did not
  specifically seek discovery of documents produced by Mr. Pouru.

  Grounds of appeal in a nutshell

  7. Public interest appears to be the main reason for the Trial Judge’s refusal
  of the motion. The seven grounds of appeal, in a nutshell, is that the motions
  Judge failed to consider the submissions and the legal principles in relation to
  discovery pursuant to Order 9 Rules 5 and 7 and erroneously refused the
  motion.

  Main Issue

  8. In the circumstances, the decisive issue, in our opinion, is whether
  discovery, disclosure or inspection of documents in question would be injurious
  to the public interest? This is a procedural law issue.

  Relevant procedural law

  9. Order 9 Rule 16 of the National Court Rules provides that discovery and
  inspection of documents “does not affect any rule of rule which authorises or
  requires the withholding of any document on the ground that its disclosure
  would be injurious to the public interest”.

  10. What is the rule of law? The rule of law is the principle that all persons
  and institutions are subject to and accountable to law that is fairly applied and
  enforced. Public interest is welfare or wellbeing of the general public. The
  relation between these two principles is explained, as an example, in the
  criminal case of The State v Paul Loi (2009) N4058, by His Honour Batari J,
  thus:

  “A decision to call evidence is such a heavy responsibility not to be taken
  lightly by prosecuting Counsel. The election must be based on a duty to
  act fairly and in the interest of promoting criminal justice administration.
  It must be guided by proper principles and application of the “rule of
  law.” The maintenance of the “rule of law” requires the involvement of a

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• fair, impartial prosecutor, consistent with ethical considerations of his
  role and the practice and procedure of the Court, to properly discharge
  his duty both to the State and the Court. At stake is the public interest
  which is to see that those charged with serious criminal offences such as
  unlawful killings are properly prosecuted in a Court of Law. The public
  interest represented by the State Prosecutor demands that, Counsel takes
  all reasonable steps to secure and adduce evidence as a general rule
  before prosecution case is closed. After all, that is the paramount
  consideration of a fair trial under s. 37(3) of the Constitution…”

  Application of procedural law to the facts

  11. In this case, the Appellant seeks discovery of documents relating to the
  investigation and of meeting minutes. Interestingly, the Appellant does not seek
  discovery of Mr. Pouru’s documents, which are the very basis for taking out the
  OS proceeding.

  12. In relation to meeting minutes, we are unable to see the reasons why the
  Appellant wants to discover them. We take into account that under the Organic
  Law, investigations of the Commission are conducted in private. Such privacy
  would cover their discussions and deliberations in meetings. The Commission
  is not obliged, for that reason, to disclose its meeting minutes to the Appellant.
  In any case, meeting minutes are not evidence. It serves no useful purpose for
  meeting minutes to be provided to the Appellant.

  13. In relation to “documents relating to the investigation” we note that the
  Appellant has the right to challenge the proceeding of the Commission but it is
  also in the public interest that the proceeding of the Commission, or the
  Leadership Tribunal, should not be compromised and tampered with. In this
  case, documents which are the subject of the motion are not mere records in the
  possession, custody or control of the Commission. They are materials obtained
  by law for a specific purpose, that is, to present to the Leadership Tribunal as
  evidence. Until they are presented, it is not in the public interest for those
  materials to be released to and used by the Appellant in an irrelevant
  proceeding.

  14. We are also of the view that it is not in the public interest for proceedings
  of the Commission to be subjected to other civil proceedings. Such is the
  growing undesirable judicial development in the country which has to be
  discouraged by proper exercise of discretion. In criminal cases, it was held in
  Wartoto v. The State (2015) SC 1411, that the National Court sitting in its civil
  jurisdiction should not interfere with criminal proceedings. An accused person
  still has the right of protection of the law under Section 37 of the Constitution
  and he or she can still exercise the other avenues for redress available to him or

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• her under the Criminal Justice System, the Criminal Code and Criminal
  Practice Rules.

  15. In relation to proceedings under the Leadership Code, we are also of the
  view that the National Court in its civil jurisdiction should not interfere with
  proceedings of the process under the Leadership Code. Proceedings under the
  Leadership Code are sanctioned by an Organic Law – not any ordinary Act of
  Parliament. For that reason alone, an aggrieved person enforcing his private
  right should not be allowed to interfere with the proceeding when it is still in
  progress. In the exercise of discretion, the Courts ought to take into account the
  hierarchy of laws and supremacy of Constitutional Laws and refrain from
  entertaining intervening civil proceedings.

  16. Secondly, a leader found guilty does not lose his right to challenge the
  proceeding of the Commission and any adverse finding of a Leadership
  Tribunal. With his right preserved, it is against public interest for a Leader to
  interfere midstream with a proceeding under the Leadership Code. In this case,
  for instance, the Appellant’s right to challenge his referral will not be lost if he
  is found guilty. There would be no cause for concern if he is found not guilty.

  17. The OS proceeding, in our view, was instituted prematurely. A cause of
  action in a case like this matures only when a Leader is found guilty and
  penalised. In other words, the constitutional process has to be completed before
  any challenge can be made against the process including decisions made by the
  Commission, the Public Prosecutor or the Tribunal. But if a leader is found not
  guilty, there would not be any cause of action against the constitutional process.

  18. Thirdly, the Commission, like the National Court, is an institution of the
  State. Institutions of the State are charged with the responsibility, with enabling
  laws, to administer the affairs of this country. The Commission should be
  permitted to carry out that constitutional function unhindered by private law
  cause of action.

  19. Furthermore, when civil suits are entertained prematurely, the same cause
  of action is thus subjected to two different processes. This course is more likely
  to result in delays. Delays in the prosecution of leaders charged with
  misconduct offences undermine good governance and the public loses
  confidence in the systems of government.

  20. This case is a classic example. The referral was made on 22nd July 2009.
  The OS proceeding was filed in February 2010. To date, there has been a delay
  of more than eight years. The delay has seriously undermined the Ombudsman
  Commission, the Organic Law and all efforts to promote good governance in
  the country. The Appellant has continued to be a Member of Parliament in the

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• last eight years. If he loses in the coming elections, the Commission’s
  investigations and resources spent on the investigation would be a waste of
  public funds.

  21. It also appears that the Appellant does not have any evidence to support
  his claim in the OS proceeding, hence the motion for discovery and inspection.
  In fact, evidence before us suggests that there was no breach of the requirement
  for procedural fairness as alleged in the OS proceedings. The Appellant’s right
  to be heard was accorded to him. See Nilkare v Ombudsman Commission
  [1999] PNGLR 333 and Albert Karo v Ombudsman Commission of PNG [1995]
  PNGLR 547.

  22. When the Appellant was served with the particulars of the allegations for
  him to respond to them, he did not raise any issue. He responded with ease.
  Mr. Pouru’s materials relate to the allegation of double dipping of transport
  operational expenses to which the particulars were furnished to the Appellant
  and he responded to them on 30 November 2006. His responses were:

  “As a responsible leader I have immediately ceased claiming such
  entitlements and the practice of reimbursements has ceased since I was
  advised. In addition, I have made a K20,000 payment to the Department
  to offset these payments. Once I am told of the remaining balance, I will
  ensure it is settled in full immediately.”

  23. Mr. Pouru’s materials basically shows that the Appellant owed PNGFA a
  sum of K55,420.38. Mr. Pouru confirmed in his letter of 4 February 2008 to the
  Commission that the Appellant repaid K20,000 on 18 October 2006. Before
  writing to the Commission, Mr. Pouru, on 1 February 2008, advised the
  Appellant that he still owed PNGFA K35,420.38 and requested that “he can
  make the necessary settlement and following which [Mr. Pouru] shall inform
  the Commission”.

  24. If the Appellant had any issue with Mr. Pouru’s materials, he was at
  liberty to raise those issues with Mr Pouru and the Commission but he did not.
  He waited until after the referral, which was done 17 months later on 22nd July
  2009, and after a Tribunal had already been established, to file the OS
  proceeding in February 2010.

  25. We note that the Appellant initially applied for leave to review the
  Commission’s decision to refer him to the Public Prosecutor for prosecution
  before a Leadership Tribunal. See Hon Pruaitch v Manek (2009) N3903. That
  application was refused by Hartshorn, J on 8th September 2009. It appears that

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• that decision was totally ignored by the Appellant as well as the Courts, with
  due respect.

  26. The whole situation of this case displays, among other things, an
  undesirable imbalance between private interest and public interest. The Court’s
  exercise of discretion, with respect, has favoured the Appellant’s personal
  interest in the last eight years at the expense of a constitutional law process,
  good governance and public interest. It is, in turn, a negative indictment on the
  rule of law.

  Conclusion

  27. For the foregoing reasons, the Appellant’s motion should fail. Pursuant to
  Order 9 Rule 16, it is not in the public interest for documents and materials that
  were relied upon by the Commission to refer the Appellant to the Public
  Prosecutor to be discovered in the OS proceeding when the Leadership Code
  proceeding has not been concluded. The Appellant would be at liberty to
  resurrect his application for discovery if he was found guilty by the Leadership
  Tribunal.

  Orders

  28. Our conclusion is in line with the conclusion reached by the Trial Judge.
  Accordingly, we are obliged to dismiss the appeal and we do so with costs
  which, if not agreed, shall be taxed.
  ________________________________________________________________
  Young & Williams Lawyers: Lawyer for the Appellant
  Ombudsman Commission: Lawyer for the First Respondent
  Wagambie Lawyers: Lawyer for the Second, Third and Fourth
  Respondents